State ex rel. Wayne County v. Hackman

WALKER, J. This is a proceeding in mandamus to require the respondent as State Auditor to register an issue of two-hundred thousand dollars refunding bonds of Wayne County. These bonds were issued under the provisions of Section 1249, Revised Statutes 1909, authorizing the funding of bonded or judgment indebtedness. The original bonds had been issued by virtue of Sections 10520 to 10525, Revised Statutes 1909, which grant the power and define the method to be pursued by the people of a county and their administrative agent,- the county court, in the issuance of bonds for the improvement of public roads. One-half of the aggregate amount of this original issue was in the denomination of one-hundred dollars each and bore interest at the rate of four and one-half per cent per annum, payable annually, and to mature within twenty years after their date, subject' to prior payment at any time within twenty years upon the call of the county, as provided for in Section 10522, Revised Statutes 1909. These sections were repealed by an act approved April 9, 1917 (Laws 1917, p. 442), and statutes kindred in their nature and conferring similar powers were enacted in lieu thereof. [Secs. 83, 84 and 85, Laws 1917, p. 470.] The preliminary steps necessary to authorize the issuance of the original bonds in conformity with the — 606 — statute then in force had been complied with' prior' to its repeal, but the bonds were not issued until April 29, 1917. In June, 1917, they were presented to the respondent for registration as' required by Section 1275, Bevised Statutes 1909, and were by him registered. Soon thereafter they were sold and paid for at their par value. At the time of- the execution and before the delivery of the original bonds to the purchaser, the county court levied a tax uipon the taxable property of the - county in an amount sufficient to pay the interest and a portion of the principal each year upon said bonds, in conformity with the conditions of their issuance. Afterwards on June 10, 1917, the county court called for the payment of all of said bonds and in order to provide funds necessary to pay off and retire the same prepared and executed, under the provisions of said Section 1249, refunding bonds in the aggregate sum of two-hundred thousand dollars, each of the face value of one-thousand dollars, dated May 1, 1917, and bearing interest at the rate of four and one-fourth per cent per- annum, or one-fourth of one per cent less than-the interest required to be paid on the original bonds, which interest was made payable' semi-annually, the bonds maturing in the year 1922 and serially thereafter to the year 1937. These refunding bonds were presented to the respondent as Auditor of the State in compliance with the requirements of the law in this behalf and their registration was by him refused. Hence this proceeding. That the steps taken antecedent to the issue of the original bonds were in conformity with the law then in force is conceded. Bespondent contends, however, that the writ, should not issue for the following reasons: (1) that the statute under which the original bonds were issued was expressly repealed before such bonds were actually issued, registered and negotiated; (2) that Section 1249 under which it is sought to refund these bonds is unconstitutional; and (3), if not unconstitutional, the attempt at refunding is not within the intent and purpose of the statute and as a consequence is unauthorized. — 607 — Continuing Effect of Repealed Statute. I. As a general rule, a statute expressly repealed is thereby abrogated and all proceedings commenced thereunder which have not been consummated are rendered nugatory unless the repealing act is modified by a saving clause. Despite the fact that the courts with .that conservative spirit which looks to permanence in the law, do not fawor repeals (St. Louis v. Kellman, 235 Mo. 687), there is except for modifications which may be effected by a saving clause but one unqualified exception to the rule as above announced and that is where a vested right is involved. Present here, this character -of right may serve to solve the matter at issue. That statutes áuthorizing the issuance of bonds for the construction and improvement of highways are remedial in their nature seems beyond question. Although they result in the creation of a burden, they confer a benefit. The standard of civilization of a people may well be marked by the condition of their roads. Well constructed they facilitate travel, thereby encouraging a more extended intercourse which is promptive of intelligence, and at the same time facilitate trade uipon which all material prosperity is based. However, the public nature and salutary character of these statutes will not alone suffice to render the rights they may confer, if not consummated, vested. By a vested right we mean one which is absolute, "complete and unconditional (Orthwein v. Insurance Co., 261 Mo. l. c. 665), to the exercise of which no obstacle exists and which is immediate and perfect in itself and not dependent upon a contingency. [Young v. Jones, 180 Ill. l. c. 221; Bailey v. Railroad, 4 Harr. (Del.) l. c. 400; Day v. Madden, 9 Colo. App. 464; Royston v. Miller, 76 Fed. l. c. 53.] The facts do not sustain the conclusion that such a right exists here. While a right existed which liad been partly executed at the time of the repeal of the statute, it was at best inchoate or initiatory' in its nature, its consummation being dependent upon the contingency of the issuance of the bonds and the registration of same. This being the nature of the right, it does not furnish authority for the exercise of the mandatory power of the court, — 608 — Limited to this reason alone the conclusion would be justified that it was the purpose of the. Legislature in the enactment of the repealing law to obliterate or destroy the power of counties to issue bonds to provide funds for road purposes; and in the absence of a saving clause to have a like drastic effect upon this power when partly exercised under the statute repealed. No special' saving clause was attached to the repealing act. Except by way of emphasis to give explicit application to general laws, such special saving clause was unnecessary. A repealing statute which construed alone would paralyze partly executed powers is, under our legislative system, so modified by Sections 8060 and 8062, Bevised Statutes 1909, as to perpetuate such powers to the extent of authorizing the completion or consummation of the purpose sought to be effected under a former law. Section 8060 so far as applicable to the case at bar is as follows: “nor shall any law repealing any former law, clause or provision be construed to abate, annul, or in any wise affect any proceedings had or commenced under or by virtue of the law so repealed; but the same shall be as effectual and be proceeded on to final judgment and termination, as if the repealing law had not passed, unless it be otherwise expressly provided.” This court in Rogers v. Railroad Co., 35 Mo. 153, discussing a question as to the modifying effect of said section upon a repealing statute, said, in effect, that this provision (Section 8060) preserves the relator’s right of action notwithstanding the repeal of the statute under which the right was given. The Legislature, however, not satisfied with leaving the validity of acts done to implication, where the facts in regard to a repeal were as in the case at bar, enacted Section 8062, which provides that: “The repeal of any statutory provision shall not affect any act done or right accrued or established in atny proceedings, suit or prosecution, had or commenced in any civil case previous to the time when such repeal shall take effect; but every such act, right and proceeding shall rem.ain as válid and effectual as if the provisions so repealed had remained in force.” These sections, construed together, so modify a re — 609 — pealing statute, as to not only render valid initiatory or preliminary acts in the exercise of a power conferred by a former statute, but authorize such subsequent acts as may he necessary to effect the purpose originally contemplated. This conclusion does not require us to travel over an untrodden field in this jurisdiction. In a mandamus proceeding against the county court of Vernon County in State ex rel. Stone v. County Court, 53 Mo. 128, the purpose of which was to compel the completion of action by a county court, which had been initiated under a statute then repealed, the Supreme Court construed and applied what are now Sections. 8060 and 8062, and held thatt a repealing statute, although express in its terms and having no special saving clause attached, did not, on account of the modifying effect of said general saving sections, render nugatory preliminary acts done or prohibit further action in the completion of same. The limitation of the operative effect of these sections to judicial transactions as contended for by respondent, is not in accord with their terms, nor with the evident purpose of their enactment. Their general nature authorizes the conclusion that they were intended-to continue in force repealed laws until proceedings commenced thereunder, regardless of their nature, might be completed. This was the construction placed, upon them in the cases cited, and we have been unable to reach a contrary conclusion. - The reasoning above employed and the conclusion deduced therefrom are based upon the assumption that the repealing law left no operative statute authorizing county courts to issue bonds for road, purposes and that the extension of this power in this case was'due solely to the modifying effect of the general saving sections. For the reasons stated we deem the conclusion reached irrefutable; but the assumption is not in accord with the fact and is proper only to illustrate the continuing power of the former law in the-absence of a like subsequent enactment. The facts are that simultaneously with the repeal of - Sections 10520-10525 another statute (Secs. 83, 84, 85, Laws 1917, p. 470) was — 610 — enacted to effect the purpose of the repealed láw. The purpose to be effected and the powers conferred by these statutes were similar in all .of their material features. Each was intended to authorize, upon a compliance with their conditions, the issuance of bonds by county courts for road purposes. They differ only in minor particulars. The latter differs from the former in requiring two hundred petitioners to initiate action by the county court instead of one hundred;' in limiting the bond issue to ten per cent of the assessed valuation of the property of the county; in the form of ballot which is slightly changed; in the statement of the rate of interest which is omitted from the order for the election ; and in authorizing the court to prescribe the terms of the bonds, instead of requiring one-half of them to be in denominations of. one hundred dollars each and the payment of one-twentieth of the issue each year, the same is limited to multiples of one hundred dollars and the time of payment is left to the determination of the court, the term not to exceed twenty years. Although there was an express repeal of the former statute the immediate reenactment of same, except as to the changes noted, left, so far as the practical application of the law is concerned, the same power in the county court. Under these conditions, although the latter law does in terms repea.1 the former, the effect is not to be ascribed to it of annulling all proceedings commenced when the former law was in force. The operative force of both laws.being essentially the same, the latter may properly be construed to be a continuance of the former; and, it is only necessary to render the steps taken regular that subsequent proceedings are required to conform to the latter. [State ex rel. v. Vernon County, supra.] Refunding' Years. II. It is contended that Section 1249, Revised Statutes 1909, which authorizes the issuance of refunding bonds, is in contravention of that provision of the State Constitution (Sec. 12, art, 10) requiring the payment of county indebtedness within twenty years from the time of contracting same; and that the' effect of such — 611 — refunding is to extend the time of payment, of the bonds thus issued to a period of more than twenty years from the date of the original issue. This court has held to the contrary in a well considered case of State ex rel. Proctor v. Walker, 193 Mo. 693. «Without burdening this opinion with quotations therefrom, it will be sufficient to say that it marks the distinction between the original creation of a county debt and its subsequent refunding, and limits the constitutional inhibition as' to time to the former. A different construction would practically prevent any other adjustment of such a debt than unconditional payment at its maturity. Drastic as are the limitations of the organic law, due to conditions existing at the time of its adoption, it would, as was clearly held in the Walker case, be too narrow and crabbed a construction to apply its provisions to the refunding of such an indebtedness as was here created. Well satisfied with-the ruling in the Walker casé we are not inclined to a different conclusion than is therein reached. Sale oRefunding Eonds. III. The respondent attacks the validity of the refunding bonds for the alleged reason that the county court made an agreement with the purchaser ox'ig-ina^l boiids that he should have the right to purchase the refunding issue. This position of the respondent, however, is wholly unwarranted by either the statutory law or by reason based upon the facts. The statute in this regard is broad and sweeping, and indicates generally' the legislative intent that outstanding bonds may be refunded at any time after their issue. The language of Section 1249 is as follows-: ,. . Nothing in Sections ’ 1249 to 1251, inclusive, shall be so construed as prohibiting any County . . . that now has or may hereafter have a bonded or judgment debt . . . from funding or refunding such debt without the submission of the question to a popular vote, whenever such funding or refunding can be done at a lower rate of interest than the debts so funded or refunded bore . . — 612 — Given concrete application, this language warrants the construction that Wayne County had the right to refund its road bonds whenever it could be done at a lower rate of interest, as was done in this case. If the refunding bonds had been sold at a lower rate of interest, to any investor other than the purchaser of the original bonds, the question raised by the respondent could not have appeared in this record. Under such circumstances, it would have been the duty of the county court to accept the offer of such subsequent investor in order to secure for the county a lower rate of interest. If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, he is penalized for purchasing the original bonds as being the only one not entitled to purchase the refunding bonds, which would be contrary to public policy. If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, then the statute (Section 1249 ) must necessarily be construed as not applicable to county road bonds. This would result in a construction of. the statute not authorized by its language or intent. If county road bonds may not be refunded under Section 1249, in accordance with its unqualified conditions, then such bonds are stripped of one of the most important and valuable characteristics of all municipal bonds. The foregoing alternative reasoning which in the main is that of relators, presents plausible grounds in support of the action of the county court in refunding these bonds. Under the provisions of Section 1249, however, the court is authorized at any time to take such action whenever it will effect a reduction in the rate of interest. This was accomplished by the action of the court in this case, which, in our opinion, was not only within the spirit and purpose of Section 1249, but was in conformity with its letter. There is, therefore, no merit in this contention. From all of the foregoing we are of the opinion that the peremptory writ of mandamus should issue herein, and it is so ordered. • All concur, Bond, J., in paragraph 2 and result, except Baris, J., who dissents.