State ex rel. Willis v. Heber City

STRAUP, C. J. An application is here made for a writ of prohibition to restrain the mayor and other officers of Heber City, a municipal corporation, from issuing and negotiating certain proposed municipal bonds. The principal grounds for the writ are that the purpose for which the indebtedness was created and the bonds proposed was not stated in the order or resolution of the city council incurring the indebtedness, or in the published notice to the electors, and that the money to be obtained from the sale of the bonds will be devoted, not to general corporate purposes, but for the construction of an electric light plant, and for supplying the city and its inhabitants with artificial lights. It is made to appear that the city has “no existing general indebtedness for contingent expenses or general corporate purposes,” that the assessed' [3] value of tbe property within tbe city is $566,442, and tbat tbe amount of bonds proposed is $22,500. Tbe purpose for creating tbe indebtedness and issuing tbe bonds, as stated in tbe order or resolution of tbe city council, and in tbe published notice to tbe electors, is “tbat sucb indebtedness is to be created and said bonds issued and tbe money derived therefrom shall be used for general corporate purposes of Heber City.” Tbe proposition on sucb published notice was submitted to tbe qualified electors of tbe city. A majority of them, substantially all of them voting at tbe election, voted in favor of tbe bonds. It is alleged in tbe petition, and admitted in tbe answer, that tbe purpose of tbe bond issue is to obtain money to construct an electric light plant, and to supply artificial lights to tbe city and its inhabitants, and' tbat tbe money to be obtained from tbe sale of tbe proposed bonds will be applied to sucb purpose. By section 4, art. 14, of tbe Constitution it is provided tbat: “No city, etc., shall become indebted to an amount, including existing indebtedness, exceeding four per centum of tbe value of tbe taxable property therein . . .: Provided, tbat no part of tbe indebtedness allowed' in this section shall be incurred for other than strictly . . . city, . . . purposes; provided, further, tbat any city or town . . . may be allowed to incur a larger indebtedness, not exceeding four per centum additional, for supplying such city or town with water, artificial lights or sewers, when tbe works for supplying sucb water, light and sewers, shall be owned and controlled by tbe municipality.” By section 5: “All moneys borrowed by, or in behalf of tbe state, or any legal subdivision thereof, shall be used solely for tbe purpose specified in tbe law authorizing tbe loan.” By section 308, Comp. Laws 1907,- it is provided tbat: “Any city or town in this state is hereby authorized to incur an indebtedness not exceeding four per centum of tbe value of tbe taxable property therein, for tbe purpose of supplying sucb city or town with water, artificial light, or sewers, when tbe works for supplying sucb water, light, and sewers shall be owned and controlled by tbe municipality, when tbe proposition to create such debt shall have [4] been submitted to a vote of suob qualified electors as shall have paid a property tax iu the year preceding such election aud a majority of those voting thereon shall have voted in favor of incurring such debt.” By section 309 that: “When the city council of any city or the board of trustees of any town shall have decided to submit the question of incurring a bonded indebtedness, it shall', hy order, specify the particular purpose for which the indebtedness is to be created and the amount of bonds which it is proposed to issue,” etc. From a reading of the Constitution it will be seen: that a city may incur a bonded indebtedness of four per centum of the assessed value of taxable property for 1 city purposes, and an additional bonded indebtedness of four per centum for supplying the city with water, artificial lights, or sewers. That is to say, a bonded indebtedness of four per centum may be incurred for general city purposes, including the supplying of the city with water, lights, or sewers; such things being for city purposes as much as is the creating and maintaining of a fire department, the grading of streets, or the defraying of expenses. In addition to that the city may also incur an additional indebtedness of four per centum for the purpose of supplying the city with water, lights or sewers. If the city has an existing indebtedness of four per centum, it then can only incur an additional indebtedness of four per centum for the purpose of supplying the city with water, lights, or sewers. If the city has no existing indebtedness, and it so desires, it may incur an indebtedness of eight per centum for supplying the city with water, lights, or sewers, or for any one of such things. In other words, if the city has no indebtedness the Constitution does not restrict a bonded indebtedness to four per centum, for supplying the city with water, light, or sewers. For such purposes, the incurring of an “additional” indebtedness of four per centum is permissible. But we are of the opinion that whenever a bonded indebtedness is to be incurred or created, the city 2 council is required, by order or resolution, and in the published notice to the electors, to specify the purpose for [5] wbicb tbe indebtedness is to be created or incurred, and for which the proposed bonds are to be issued. Not to do so renders section 5, art. 14, of the Constitution futile. The specification here made “for general' corporate purposes” is entirely too general. The Constitution (article 14, section 3) very clearly provides that no debt in excess of the taxes for the current years shall be created by any city, etc., unless the proposition to create such debt be submitted to the qualified electors of the city. The proposition should be submitted in such a way as to obtain a full and fair expression of the will of the voters. . TJnder such a general statement, as here, the voters would not know whether the indebtedness is incurred to supply and maintain a fire department, grade streets, defray expenses, construct a waterworks system, an electric light plant, sewers, or for divers other things for which money may he devoted for corporate purposes. In such case it could' not be ascertained whether the money obtained from the sale of the bonds is, in the language of the Constitution, “used solely for the purpose specified in the law authorizing the loan;”- — here the resolution and ordinance authorizing the loan and creating the indebtedness. If this notice should be held sufficient, and the money should he applied to grade streets-, or to supply a fire department, how could the voters complain who voted for the bonds on the belief that the money was to be used to supply the city with artificial lights? If it is desired to incur an indebtedness in excess of the taxes for the current year, and to issue bonds therefor, there ought not to be any difficulty in stating the purpose of it. If the municipality desires to create such an indebtedness to- supply the city with artificial lights, let such purpose be specified. Because no purpose has been specified by the order of the city council, or in the published notice to the electors, the temporary writ heretofore allowed is made permanent. It is so ordered. Costs to the relator. BRICK and hlcCARTT, JJ., concur.