State ex rel. City of Columbia v. Wilder

GANTT, J. This is an original proceeding in this court to obtain a peremptory writ of mandamus compelling the respondent, the State Auditor, to register certain sewer bonds to the amount of $10,000, which the city of Columbia has presented to him for registration, and which he has refused to register. The undisputed facts are that the city of Columbia is a municipal corporation, organized under the general laws of the State as a city of the third class, and has a population of nearly eight thousand. According to the last previous assessment, the assessed valuation of the taxable property in said city amounts to $2,462,-050. At the present time, and at the time of holding a special election, hereinafter referred to, the bonded indebtedness of said city was $140,700'. Of this indebtedness bonds to the amount of $110,000 were issued in payment for water works and electric light plant, which was to be owned by said city. All of said water and light bonds were issued on April 1,1904, except $10,000 worth, which were issued October 2, 1905. On July 21, 1905, an ordinance of the city was passed and approved having for its purpose the incurring of an additional bonded debt of $10,000 for the purpose of constructing sewers in the said city. The bonds were to mature in fifteen years, payable at the option — 5 — of tlie city in five years, and to bear not more than five-per cent. The proposition was submitted in due form to a vote of the people at a special election b-eld on August 8, 1905, and received the assent of more than two-thirds of the voters. The city authorities, in accordance with law, afterwards declared by ordinance that said proposition in favor of the issuance of said bonds had been adopted. Thereafter the bonds in question were prepared and presented to the respondent, the State Auditor, and he refused to register them because they were in excess of the power of the city to become indebted, and this proceeding, as already said, is to require him to register the said bonds. Section 12 of article 10 of the Constitution of Missouri, 1875, provides: “No county, city, town or township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two thirds of the voters thereof voting at an election to be held for that purpose; nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness: Provided, That with such assent any county may be allowed to become indebted to a larger amount for the erection of a courthouse or jail. And provided further, That any county, city, town, township, school district or other political corporation or subdivision of the State, incurring any indebtedness, requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute — 6 — a sinking fund for payment of the principal thereof, within twenty years from the time of contracting the same.” . At the general election held in this State in November, 1902, another section designated as section 12a, was added to the Constitution. Said amendment to the Constitution is as follows: Section 12a; “Any city in this State containing not more than thirty thousand nor less than two thousand inhabitants, may, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10 of the Constitution of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city so purchasing or constructing same,” with the same proviso practically as that contained in the original section 12, of article 10 of the Constitution in regard to the providing for annual tax to pay the interest and to constitute a sinking fund for the payment of the principal. [Laws 1901, pp. 268, 269; Laws 1905, pp. 324, 325.] As the bonds which the Auditor refused to register were not issued for the purpose of constructing water works, electric or other light plant to be owned by the city, they do not fall within the provisions of section 12a. of the Constitution, so that the only question presented is whether the bonded indebtedness to the amount of $110,000, which was contracted in payment of the water and light plant in 1904, is to be included in determining what is the five per cent limit of said city’s indebtedness. It is insisted by the city that it should not be taken into account in determining the amount of its indebtedness at the time the bonds to the amount of $10,000 were voted and issued for the purpose of constructing sewers in the city. Including the $110,000 or bonded indebtedness, the total indebtedness of the city when the bonds which the city now seeks to have regis — 7 — tered were voted and issued, was $140’,700', and five per centum on the value of the taxable property in said city, to-wit, $2,462,050, was $123,102.50, so that it is evident that if the $110,000 of bonds constituted a part of the indebtedness of the city within themeaningof sectionl2of article 10 of the Constitution, there was no authority for incurring this additional indebtedness of $10,000, because the five per centum on the assessed value had already been exceeded. But it is insisted by the learned counsel for relator that by excluding the bonds for the $110,-000 from the total indebtedness of $140,700, and adding the $10,000 of the proposed bond issue to the indebtedness incurred previous to the issuing of the $110,000 bonds, this issue of $10,000 of bonds is kept within the five per cent limitation, and the entire bonded indebtedness is within the ten per cent limit provided in section 12a of the Constitution as amended in 1902, and that therefore the city had the right to have these $10,000 bonds registered. And it is argued that if the city had, before it issued this $110,000 of bonds for waterworks and electric light plant, issued this $10,000 of bonds for the purpose of constructing sewers, the $10,000 of bonds thus added to the then pre-existing debt would have made the indebtedness incurred up to that time only $40,700, and it would have been perfectly lawful for the city to have then voted and issued the $110,000 of bonds under the provisions of section 12a of article 10 of the Constitution as amended in 1902, and that therefore the fact that the $110,000 of water bonds were first issued will not deprive the city of the privilege the amendment of 1902 was intended to confer upon it, and hence the $110,000 of bonds is not to be taken into account in estimating the then existing indebtedness. In consideration of these respective contentions on the part of the Auditor and the city, it is obvious, we think, that section 12 of article 10 of the Constitution and section 12a of the amendment thereto in 1902, must be read together, being in pari materia, and the amendment be — 8 — ing evidently intended to supplement section 12 of article 10 of the Constitution. Now section 12 of article 10 provides: “Nor in cases requiring such assent shall any indebtedness be allowed to be incurred to an amount, including existing indebtedness, in the aggregate exceeding five per centum of the value of the taxable property therein.” And section 12a by its very terms refers to section 12, and provides that “any city in this State containing not more than 30,000 nor less than 2,000 inhabitants, may, with the assent of two-thirds of the voters thereof voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than specified in section 12 of article 10. of the Constitution of this State, not exceeding an additional five per centum on the value of the taxable property therein, for the purpose of purchasing or constructing waterworks, electric or other light plants, to be owned exclusively by the city.” This amendment referring as it does to the power of incurring indebtedness as provided in section 12 of article 10, is limited to the restriction specified in section 12 of article 10, save and except that for the specific purpose of acquiring waterworks and electric light plant, the city may incur a debt not exceeding ah additional five per centum on the value of the taxable property therein. And section 12 of article 10 of the Constitution expressly provides that in incurring any indebtedness in any manner or for any purpose for an amount exceeding in any year the income and revenue provided for such year, the indebtedness to be incurred shall not exceed five per cent on the value of the taxable property, including existing indebtedness. That the $110,000 in bonds issued in 1904 were an existing indebtedness at the time the bonds in question were voted and issued there can be no doubt whatever. Nor do we think when the two sections 12 and 12a are read together, there can be any less doubt that the additional — 9 — five per cent on the taxable property includes the then existing indebtedness, and whether the debt is to be incurred under section 12 of article 10, or section 12a of the same article, the amount of existing indebtedness must always be taken into account. The Constitution makes no exception as to the character of the exiisting indebtedness. It is urged that the accidental fact that the city had already exceeded the five per cent limit before it undertook to incur this last $10,000 for bonds, ought not to operate against it since it could have avoided this collision with the Constitution by having first issued the sewer bonds and then voted the $110,000 for waterworks and electric bonds. But as we regard it, the question is simply one of incurring a debt by the city in view of the constitutional restrictions imposed upon it, and we can find nowhere in section 12 or 12a or any other part of the Constitution any authority for making a discrimination in the character of the debts which make up the total of the municipality’s existing indebtedness when it seeks to incur an additional indebtedness. On the contrary as we read the Constitution the existing indebtedness includes any and all legal debts of the city. It was attempted to make such a distinction in Potter v. Douglas County, 87 Mo. 239, and it was made in that case, but that ease was repudiated in Barnard & Co. v. Knox County, 105 Mo. l. c. 391, in which it was held that the strong and comprehensive language of section 12 of article 10 of the Constitution admits of no distinction between debts created by law. And we add it does not permit the character of a particular indebtedness to exclude it from constituting a part of the existing indebtedness which must be included in estimating the five per cent limit. We cannot assent to the proposition that the sole purpose of the amendment was to confer power to tax. On the contrary it was designed just as section 12 of article 10 of the Constitution was, to restrict the power — 10 — of incurring’ indebtedness and it only extended the power to contract a new indebtedness over and above existing indebtedness to an additional five per cent for a specific purpose. Obviously tbe first five per cent, even in that case, must include the existing indebtedness and so must also the ten per cent include that indebtedness in estimating the limit. This, we take it, is conceded by all parties. As the debt sought to be incurred by the issuance of the bonds now sought to be registered is not for the acquisition of waterworks or electric or other light plant to be owned exclusively by the city, section 12a of article 10 is out of the case, and the sole question is whether the city had already exceeded the five per cent limit when it undertook to incur this debt evidenced by its bonds to the amount of $10,000 for sewers, and that it had, we think, is beyond the peradventure of a doubt. In estimating its existing indebtedness, the city was bound to include the $110,-000 of valid bonds already issued as a part of said indebtedness, and when this is done it is clear that the proposed indebtedness will exceed the constitutional limit of five per cent and is unauthorized and therefore void, and the State Auditor properly refused to register the same, and accordingly the writ of mandamus must be and is denied. Burgess, Fox and Graves, JJ., concur; Brace, C. J., Valliant and Lamm, JJ., dissent.