People ex rel. Mayo v. Lippincott

Mr. Justice Sheldon delivered the opinion of the Court: The petition shows that the new bond of the relator was issued in lieu of old bonds in strict conformity to the act of 1875, and that it was duly presented to the Auditor of Public Accounts for registration under the act of 1865. The demurrer admits all these facts, and the only question presented for our consideration is, whether it was the duty of the Auditor, under the above statutes, being the only ones bearing upon the subject, to register the bond. The Auditor’s reason for his refusal to register the bond was, that, by reference to section 1 of the act of February 13, 1865, it would be seen that the act did not apply to debts created after its passage; that bonds issued to fund indebtedness created since February 13, 1865, were not subject to registration in his office under the act of February 13, 1865. The first section of the act of February 13, 1865, by express terms, limits its operation to debts created previously to the passage of the act, so that the provision for the registration, etc., of bonds, wdiich it contains, has no application, according to the provisions of the act, to bonds, like that in question, issued for indebtedness created subsequently to the passage of the act. It is insisted, in behalf of the relator, that the first section of the act of 1865, which relates to the funding of outstanding indebtedness, was repealed by the act of March 26,1872; that the object of said first section, and the act of 1872, is the same, to-wit: to enable counties, etc., to fund their maturing indebtedness; that the act of 1872 revises the subject matter, and covers all embraced in the first section of the act of 1865, and something more; that it is a substitute for and revision of that section, with certain extensions and limitations; that a subsequent act, which embraces the whole subject contained in a previous one, repeals it as effectually as if it said so in so many words, but that it is only such portions of the previous act as are covered by the subsequent one that are repealed; that all the other sections and provisions of the act of 1865, except the first, remain in full force, because neither the act of 1872, nor that of 1875 substituted for it, contain any provisions on the subject of the other sections relating to registration. In short, that the acts of I860, 1872 and 1875, all constitute one act on the same subject; that the first section of the act of 1865 is repealed, because repugnant to the acts of 1872 and 1875; that none of the other sections of the act of 1865 are repealed, because there is no repugnancy between them and the acts of 1872 and 1875, and that the law now stands as if the legislature had, at the time of the passage of the act of 1875, re-enacted all the sections of the act of 1865 except the first. We do not perceive how the mere repeal of the first section of the act of February 13, 1865, would help the case of the relator. That would simply leave all the other sections of the act disjoined, and by themselves, without having any subject of registration upon which they could operate. But, to serve the need of the relator, the acts of 1872 and 1875 must, by implication, operate to amend the first section of the act of February 13, 1865, to the extent, that the acts of 1872 and 1875 be made to take the place of that section as a part of that act, and in that way the provisions for the registration and collection of bonds provided by the second and subsequent sections of the act of 1865, be made to become applicable to bonds issued in pursuance of the acts of 1872 and 1875. It is necessary to establish a connection between the acts of 1872 and 1875, and the act of February 13, 1865, in order to have the provision for registration of the bonds issued under the act of February 13, 1865, apply to bonds issued under the other acts. There exists no such connection by enactment of the legislature, or by any manifestation of its intention. The attempt is, to supply it by artificial construction. There are too great difficulties in the way. Amendments by implication, like repeals by like means, surely are not favored. The acts of 1872 and 1875 contain no reference to the act of 1865. It would have been in accordance with the methods of legislative action, to have shown it by declaration, that the acts of 1872 and 1875 were intended as an amendment to the act of 1865, if such had been the purpose of the legislature. The titles of the acts express different purposes, and, under the present constitution, the titles of acts are not without importance. The act of February 13, 1865, is entitled “An act relating to county and city debts, and to provide for .the payment thereof by taxation in such counties and cities.” The act of 1872 is entitled “An act "to enable counties, etc., to take up and cancel outstanding bonds and other evidences of indebtedness, and fund the same.” The purpose of the latter, as expressed, being simply for funding indebtedness, while that of the former is for funding, and also for providing for payment by taxation. The emergency clause, which we may consider expresses the immediate object of the legislature in the passage of the act of 1872, declares that, “ Whereas, some counties, cities, townships and other municipal corporations in this State, have outstanding bonds and other evidences of indebtedness that will soon fall due, and are without any remedy for renewing or funding the same, therefore this act shall be in full force from and after its passage,” indicating the purpose only to provide a remedy which did not before exist, to renew or fund outstanding indebtedness. The act of 1865, with its provision for registration, etc., applies to only a comparatively small class of bonds, those issued by counties and cities prior to February 13,1865. It authorized new bonds to be issued for the amount of principal and accrued interest, and the interest upon the new bonds was limited to six per centum per annum. That act, with its provisions for registration, etc., may well stand, for its own purposes, unaffected essentially by the acts of 1872 and 1875. The acts of 1872 and 1875 do not refer to the act of 1865, nor need any of their provisions conflict materially with the act of 1865, or if they should, the only effect need be, to that extent, to modify that act in respect to that class of bonds to which it applies. While in some respects the language of the acts is alike, they refer to different subjects, and contemplate different objects. / The act of 1865 limited the right to fund, to counties and cities. The acts of 1872 and 1875 not only embraced counties and cities, but “any county, city, town, township, school district or other municipal corporation.” The act of 1865 was limited to funding indebtedness which had been created prior to its passage. The acts of 1872 and 1875 embraced all outstanding subsisting indebtedness at the time of their passage. The purpose of the act of 1865, as expressed by the legislature, was not only to fund the indebtedness there specified, but also to provide for its payment by taxation. Hence its provisions for registering the bonds and collecting them by taxation. The purpose of the act of 1872, as expressed by the legislature, was to provide a remedy for renewing or funding outstanding indebtedness where there was no existing provision for that purpose, and as it was for funding merely, there was no provision for the registration of the bonds, or their payment by taxation. Had the legislature intended that this last class of bonds should be subject to be registered, as were the former class under the act of 1865, we must think that they would have so provided, or at least have exhibited some indication of such an intention by reference to the act of 1865, or otherwise. n It ,does not follow, that, because the legislature saw fit to provide for the registration, etc., of the small class of bonds issued by counties and cities to fund indebtedness created prior to February 13, 1865, they must have intended that the much larger class of bonds issued by various other corporations under the acts of 1872 and 1875, should be subject to the same provision for registration, and taxation for their payment. It is said that the acts of 1872 and 1875 are, in themselves, incomplete, in not making any provision for the payment of the new bonds to be issued under them, by taxation. We are unable to see that such is the case. There would at least be an equal remedy for enforcing payment of the new bonds, as of the prior indebtedness for which they were issued. The authority to fund outstanding indebtedness is conferred by the legislature upon corporations and municipalities which were already vested by law with the power of contracting debts, and, with complete means under their own control for the levy and collection of taxes for the payment of these debts. Had the legislature so directed, the second and subsequent sections of the act of 1865 would doubtless furnish a more satisfactory method, as-respects the bondholder, for the enforcement of the collection of the bonds to be issued under the acts of 1872 and 1875, but it has not done so. We think it apparent that the act of 1865, and those of 1872 and 1875, were enacted for different objects, to be accomplished by different means, and that each, for its own independent purpose, is still in full force; that it is a forced construction not admissible, that the two latter acts were amendatory of the former, and that the Auditor is correct in his conclusion, that bonds issued to fund indebtedness created since February 13, 1865, are not subject to registration in his office under the act of February 13, 1865. The demurrer to the petition will be sustained, and the writ of mandamus refused. Mandamus refttsed. Mr. Chief Justice Scott dissenting.