Kane v. City of Charleston

Mr. Justice Wilkin delivered the opinion of the court: Counsel for appellant say, “the contention of the bill is that the constitution of 1870, by section 12 of article 9, puts a limit upon the duration of all municipal indebtedness ; that every municipal debt created since 1870 must be paid within twenty years, and that bonds issued for the purpose of refunding such indebtedness are but an evasion of the'constitution, and are therefore void.” The argument, however, in support of the theory of the bill, does not go to the extent here indicated. It is not pretended that a municipal indebtedness, otherwise legally incurred, ceases to be valid and binding against the municipality upon the expiration of twenty years from the date of its being contracted. On the contrary, it is conceded that the obligation of the city to pay the $20,000 outstanding bonds still exists, and that it can be compelled to pay the same in full, notwithstanding more than twenty years have intervened since their issue. Conceding this to be true, it must also be admitted that if the holders of those bonds should take no steps to compel their payment, and the city should not voluntarily, by some means, liquidate the same, they would continue to be binding obligations upon the municipality, and it could be compelled to pay them at any time within the statutory period of limitation. It cannot, therefore, be said that the constitution “puts a limit upon the duration of all municipal indebtedness,” or that it requires absolutely all such indebtedness to be paid within twenty years. The real question in the case is, can the city council, when its power to do so is questioned by a tax-payer, issue its bonds in place of or to supply means to meet maturing bonds, or for the consolidation or funding of the same, thereby consenting to an extension of the original indebtedness beyond the period of twenty years? In other words, is clause 6, section 63, of the statute above quoted, void under section 12, article 9, of the constitution. That that clause of the statute is broad enough in its terms to authorize, and does expressly authorize, the issuing of bonds like those here in question, cannot be, and is not, denied. Does the language of the constitution, which requires the municipal authorities to provide for the collection of a tax sufficient to pay the interest on bonds issued, “and also to pay and discharge the principal thereof within twenty years from the time of contracting the same,” amount to a limitation upon the power of the legislature to empower such authorities to refund the indebtedness by issuing other bonds at the expiration of the first period? There is no ground for claiming that this language of the constitution is an express limitation upon such power of the legislature, and if held to be such at all, it can only be done by construction or implication. That the language is not mandatory to the extent of affecting the validity of the indebtedness is clear from what we have already said,—that is to say, the mere fact that municipal authorities may fail to levy and collect a sufficient tax to pay the interest and principal within twenty years does not affect the validity or binding force of the indebtedness. By this we do not mean that municipal bonds issued without an attempt to make such provision would necessarily be valid. That question is not involved in this case, because the bill expressly states that the original bonds were issued in strict conformity with the provisions of this section of the constitution. It is a well-known fact, that however honestly, or even wisely, public officers may attempt to provide, by taxation, a sufficient fund to meet an indebtedness maturing twenty years in the future, that effort will often fail because taxes levied can not always be collected, and because what may seem to be a sufficient levy at the time it is made, may, on account of changes in the valuation of assessable property, prove insufficient. And so we held in City of East St. Louis v. People ex rel. 124 Ill. 655, (following the decision of the Supreme Court of the United States in East St. Louis v. Amy, 120 U. S. 600,) that if, at the end of twenty years, the provision first made proves insufficient to pay the whole indebtedness, the municipal authorities can be compelled to levy a sufficient tax upon the taxable property within its jurisdiction to pay a judgment recovered for any part of the indebtedness remaining unpaid. It being the duty of the city authorities to provide for the payment of this indebtedness, and being given authority to do so by clause 6, section 63, supra, is there any sufficient reason for holding, by construction or implication, that the constitution renders that statute void? We think not. The constitution does not say that the indebtedness must be paid within twenty years. It does not say that if, from any unforeseen circumstance, the debt, or a part of it, remains due at the expiration of twenty years, without a sufficient fund on hand to pay it, the city council may not provide for an extension of the debt. The principle is elementary, and has been applied in cases almost without number by this court, that statutes should not be held unconstitutional where any reasonable construction can be given them which will avoid that result, and that they will not be declared void, as in violation of the constitution, except where the violation is clear and plain. Much of the argument of counsel is devoted to showing that it was the object of the people in adopting the latter clause of section 12 of the constitution, supra, and it became thereby the policy of the State, that municipal indebtedness should not be created to extend beyond a period of twenty years. We are not disposed to dissent from that view. On the contrary, we think an intention that such a limit should be placed upon such indebtedness is sufficiently manifested by the language of the constitution itself. Nor are we disposed to call in question the wisdom of such provision. Evidently it is the duty, under this constitution, of every city council, when it contracts a municipal indebtedness, to faithfully and honestly provide for the levy of a tax sufficient to pay it within twenty years.. Failing to do so, it could doubtless be compelled to perform that duty. But the question here is, when the attempted discharge of that duty has failed to accomplish its object, what is the remedy? Does the public policy which should have been carried out but was not, take away from the city council the power given it by the legislature, as provided in paragraph 6, supra? It is also a matter of public interest that oppressive taxation should, as far as possible, be avoided, and if, in the judgment of the city council, the emergency which has here arisen can be met with less inconvenience and with less oppression by issuing bonds bearing the lower rate of interest, to mature in the future, than by levying a tax to be collected in a single year, we see no reason why, from the standpoint of public policy, it might not be allowed to do so. It was said in City of Quincy v. Warfield, 25 Ill. 317: “It is true, the provisions of the charter authorizing the issuing of bonds do contemplate that the city council will provide, by taxation, for their payment when due, * * * and establish a sinking fund for that purpose, and doubtless that is the true policy.” Nevertheless, it was held in that case that the failure to perform that duty did not deprive the city council of the power to issue a new bond in payment of the old, if not prepared to pay it at maturity. The decision of this case may be briefly announced, as follows: The bill shows upon its face that the city council was authorized by statute to issue the bonds in question, and it seeks to restrain the exercise of that power on the ground that the statute is in violation of the constitution. In order to do so, the burthen is upon the complainant to clearly show that the statute is in plain and palpable violation of the constitution, and this he has failed to do. The decision of the circuit court in sustaining the demurrer and dismissing the bill was therefore right, and is affirmed. Decree affirmed.