Action by certain taxpayers of the City of St. Joseph, to restrain such city from issuing improvement bonds in the sum of $1,850,000. The petition charges some thirteen reasons for the invalidity of this bond issue. The ones chiefly urged are (1) the failure of legal notice, and (2) that such an issue would allow the city to become indebted in excess of the constitutional limitation.
On March 31, 1919, there were introduced five separate ordinances in the Common Council of the City of St. Joseph, and these were passed by such Council and approved by the Mayor on the 21st day of April, 1919. These five several ordinances carried the total of $1,850,000 proposed bonded indebtedness. These ordinances fixed the election date at May 27, 1919. On April *Page 323 14, 1919, the County Court, in anticipation of said election, made an order for a special registration of voters for said election, such registration to be held April 29th and 30th, 1919.
On April 28, 1919, the city, pursuant to the provisions of Section 8671, Revised Statutes 1909, presented the ordinances to the Judge of the Circuit Court and obtained from him a certificate to the effect that the total amount of said bonds could be issued without violating the Constitution of the State. The date of the issuance of the bonds was fixed as of July 15, 1919.
The election was held on May 27, 1919, each of the five propositions being voted upon separately. Each carried by an overwhelming vote, so that unless there are fatal defects in the proceedings, or that the proposed issue so increased the indebtedness of the city as to be violative of constitutional provisions, the bonds are valid. Of the objections in the course of the opinion, where the relevant facts can best be outlined.
I. It is urged that the notice of the election was not sufficient. The lower court held that the bonds were void by a general judgment for the plaintiffs. The particular grounds upon which the injunction against the issuance of the bonds was made, are not specified. We are therefore left to grappleEffective with the whole category of objections lodged in theUpon Mayor's petition, save and except such as have beenApproval. abandoned here, or as might have been abandoned below as indicated by the course of the trial. The statute which governs the publication of notice in this case is Section 8672, Revised Statutes 1909, which reads:
"After such certificate the city shall cause to be published, once each week for four consecutive weeks, in the newspaper at the time doing the city printing, the last insertion to be not more than five days prior to the time for election, a copy of such ordinance and certificate, with a proclamation, according to law, that an election will be held at the time appointed in the ordinance *Page 324 for the voters of the city to vote on the proposition for the issue of bonds, as proposed by the ordinance."
The following admission was made of record:
"It is admitted in this case that the ordinances referred to in the petition and introduced in evidence were published on April 29, 1919, May 5, 1919, May 12, 1919, May 19, 1919, and May 26, 1919, in the St. Joseph Gazette, the paper at the time doing the official printing for the City of St. Joseph."
It will be observed, that there were five publications, the last of which was within five days of the election. The statute, supra, only requires four publications, "one each week for four consecutive weeks."
The point made is, that under the law the ordinances did not become effective until May 2, 1919, and the city had no power before that date to act in anyway thereunder.
St. Joseph is a city of the first class, of which we will take judicial knowledge. Concerning such cities we have Section 8859, Revised Statutes 1909, which, so far as applicable, reads:
"No ordinance passed by the council, except when otherwise required by the general laws of the State or by the provisions of this article, except an ordinance for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by a four-fifths vote of the council, shall go into effect before ten days from the time of its final passage."
This is the referendum statute for such cities, and the ordinances before us do not by their terms fall within the excepted classes named in this statute, unless the very face of the ordinances exempt them from this provision. These ordinances do not in the language of the statute, supra, contain "a statement of its urgency," although the vote in the council was unanimous, so far as the vote of the five present members, show. By Section 8548, the common council of cities of the first class *Page 325 shall consist of five members, so that there was a unanimous vote on these ordinances, and they might have come within the excepted classes under Section 8859, supra, had they contained the necessary recitation of "a statement of its urgency." This purely on the theory that they were ordinary ordinances, and not ordinances of the character shown by their face.
In our judgment Section 8859 has no reference to ordinances of the character here involved. As said, this is the referendum statute of cities of the first class. Its purpose was to have a reference to the voters upon an ordinance that would become effective at the date of its passage and approval, and then ten days was allowed for the purpose of the reference. But the ordinances before us are mere references to the people of the questions therein involved. They do not purport to be completed ordinances, for they themselves provide for a reference of their terms and the adoption of their terms, and the questions by them submitted. They are ordinances only in a limited sense. They are really proposed ordinances for the ratification of the voters. When ratified by the voters, they become ordinances. They might be said to fall within that line of ordinances mentioned in said Section 8859, supra, by the clause "except when otherwise required by the general laws of the State," if perchance this section covered proposed ordinances of this kind at all. We do not think that this section applies at all.
When the mayor signed these proposed ordinances that branch of the legislative power had done all that could be done to make them effective. When the voters ratified them, they became finally effective, barring legislative or constitutional defects. The passage of such proposed ordinances was but the first step in the general plan to increase the indebtedness of the city. This step was complete upon the approval of the Mayor, and all other steps could then be taken, in accordance with the proposed ordinances, as would be necessary, under the *Page 326 city charter, to complete the ordinances by a vote of the electorate. Under this view of the law there were five valid publications of the notice, and if this be true, all objections as to the notice fails. Not only do the objections to the notice fail, but all objections to things done under the proposed ordinances from April 21st, the date of their approval by the Mayor. We say this, because, among other things, it is urged that the city was premature in presenting the ordinance to the Circuit Judge. We rule that the city had the right to act under these ordinances from and after their approval on April 21, 1919. This makes the first and all five of the publications valid, and the notice was good. We need not, therefore, rule upon the question urged, that the last four publications made a legal notice.
II. What we have said in our paragraph one, supra, disposes of most of the rubbish in the case, and leaves for consideration but one or two vital questions. With our ruling all the alleged premature acts of the city under these ordinances disappear from the case. There is left at least the vital matter as to whether or not these bonds were beyond the constitutional limitations placed upon the city in the matter of incurring debts. This limitation is fixed, by Section 12 of Article X of the Constitution, which said section says:
"No county, city, town, 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 casesrequiring such assent shall any indebtedness be allowed to beincurred to an amount including existing indebtedness, in theaggregate exceeding five per centum on the value of the taxableproperty therein, to be ascertained by the assessment next beforethe last assessment for State and *Page 327 county purposes, previous to the incurring of suchindebtedness."
Counsel do not disagree upon the question of there being this five-per-cent limitation upon the City of St. Joseph. They do disagree as to whether or not this total bond issue, when added to previous indebtedness in fact exceeds thisAssessment. constitutional limit. And right here come in some questions of importance, first of which is the assessment to be considered as the basis for the calculation. The Constitution says that it must be not in excess of five per centum on the property in such city as shown "by the assessment next before the last assessment for state and county purposes, previous to the incurring of the indebtedness." And herein comes the question as to which is the proper assessment to be taken as the basis for the calculation.
The term "assessment" and "last assessment" have been construed by Division Two of this court, in the case of State ex. rel. v. Wabash Railroad, 251 Mo. l.c. 142. It is there ruled that it must be a completed assessment, i.e. one which has passed through all the state agencies which have to do with property assessments. This is a reasonable and well founded rule, and to it we add our approval. However, our approval adds nothing to the rule, because in State ex. rel. v. Gordon, 251 Mo. 303, a case In Banc, both opinions recognized the fact that the word "assessment" as used in the Constitution meant a completed assessment. The difference of opinion in the Gordon Case, supra, grew out of another matter, which will become material later. Under our rule the assessments to be considered must be completed assessments.
III. A further important step in reaching the conclusion here, is the date when the municipality is "incurring" the debt within the meaning of that term as used in the Constitution. Upon this question this court divided in State ex. rel. City ofDebt — Dexter v. Gordon, 251 Mo. 303, supra. The majorityCreating opinion fixed this rule:Period. *Page 328
"The closing clause of the constitutional limitation under discussion, expressed in the words `previous to the incurring of such indebtedness' has reference to the time when the constituted authority of a subdivision is required to ascertain whether the proposed indebtedness exceeds the constitutional limit and not to the time when such debt, if authorized, will become obligatory."
This ruling has since received express sanction in Sidney v. City of Marceline, 237 F. 168; and in Lewis v. Brady, 17 Idaho, l.c. 256 et seq., there is some persuasive argument in behalf of the rule. But be this as it may, we do not feel constrained to depart from the rule of the majority in the Gordon case, supra. This is a question upon which there should be a fixed rule, and when once fixed, there should not be radical departures. The public business requires this much.
We should add, however, that the statutes under which these bonds were being issued contemplated the property values at the time the officials were acting, and not what might be the property value at the actual sale and disposition of the bonds. [R.S. 1909, secs. 8668, 8669, 8670, 8671, 8672, 8674 and 8675.]
Among other things these sections require the city officials to present their ordinances, and the facts as to the previous assessments, and the city indebtedness, to the Circuit Judge, and receive from him a certificate to the effect the proposed bond issue, together with the existing indebtedness, will not exceed the debt-incurring power of the city. This and other things in these sections of the statute make it plain as to what should be considered the debt-creating period, and they agree with the rule in Gordon's case, supra.
IV. Under the rules of law just above stated, the assessed valuation for the year 1916 would be the basis to be used in determining the amount of indebtedness which could be incurred by the city, at the passage of these ordinances. *Page 329
We have above noted that the word "assessment" as used in the Constitution means a completed assessment. The assessment which began in June, 1918, was not completed by the State Board of Equalization until September, 1919, so that at the time the city was acting in this bond matter, this was no assessment at all, or to be used for any purpose in this case. In May, 1919, the first preceding completed assessment was that of 1917, or the one begun in June, 1917. "The assessment next before the last assessment," using the language of the Constitution, could be none other than the assessment begun in June, 1916, and completed sometime in 1917. With this as the base how stands the case?
Counsel for appellant tabulate the taxable property for the years 1916 and 1917, as follows:
"1916: Merchants and Manufacturers .......... $ 3,843,920.00 " " Other property ....................... 38,629,870.00 "1917: Merchants and manufacturers .......... 4,790,000.00 " " Other property ....................... 43,630,530.00"
Counsel likewise give figures for 1918, and the merchants' and manufacturers' tax for 1919. These will lend but little light.
Counsel for plaintiff have carefully compiled from the evidence two enlightening tables. They use two dates, May 27th and July 15, 1919. These are the dates when the ordinances were ratified, and when it was provided in the ordinances to issue the bonds. The two tables follow:
"Financial Statement of the City of St. Joseph as of Date of May 27, 1919. "Assessments, 1916: "Personal Property ..................... $4,740,080.00 "Real Estate ........................... 29,687,520.00 "Railways and Bridges .................. 2,070,200.00 "Banks ................................. 1,099,130.00 "Merchants ............................. 3,392,970.00 "Manufacturers ......................... 450,950.00 "Franchises ............................ 732,550.00 "Telegraphs and Telephones ............. 300,390.00 *Page 330
"Total Assessed Valuation .............. $42,473,790.00 "Indebtedness: "Bonded Debt ............... $722,500.00 "Less Sinking Fund ......... 197,412.07 $525,137.93 "Judgments: "Outstanding ....................... $ 65,712.28 "Less Appeals Taken ................ $ 5,150.00 59,562.28 "Bonds Recently Voted by the People of St. Joseph ................... $1,850,000.00 _____________ "Total Indebtedness .................... $2,434,700.21 "Total Present and Proposed "Indebtedness .......................... $2,434,700.21 "5% of Total Assessed Valuation ........ 2,123,689.50 _____________ "Excess Over 5% ........................ $ 311,010.71"
The total indebtedness of the city as of July 15, 1919, is shown by the following table:
"Financial Statement of the City of St. Joseph as of July 15, 1919.
"Assessments, 1916: "Personal Property ..................... $4,740,080.00 "Real Estate ........................... 29,687,520.00 "Railways and Bridges .................. 2,070,200.00 "Banks ................................. 1,099,130.00 "Merchants ............................. 3,392,970.00 "Manufacturers ......................... 450,950.00 "Franchises ............................ $732,550.00 "Telegraph and Telephones .............. 300,390.00 _____________ "Total Assessed Valuation .............. $42,473,790.00
"Indebtedness:
"Bonded Debt ............... $722,500.00 "Less Bonds Redeemed ....... 10,300.00 ___________ $712,250.00 "Less Sinking Fund ......... $187,112.07 $ 525,137.93 "Judgments Outstanding ..... $ 80,503.28 "Less Appeals Taken ........ $ 12,650.00 $ 67,853.28 ___________ "Bonds Recently Voted by the People of St. Joseph ............. $1,850,000.00 _____________ "Total Indebtedness .................... $2,442,991.21 "Total Present and Proposed "Indebtedness .......................... $2,442,991.21 "5% of Total Assessed Valuation ........ 2,123,689.50 _____________ "Excess over 5% ........................ $319,301.71" *Page 331
These figures do not permit speculation as to what should be the result of the case before us. Counsel for appellant urge that the merchants' and manufacturers' assessment for 1919 should be the one considered rather than the one for 1916 or 1917, or even 1918. Having taken the assessment of 1916 as the basis so far as other property is concerned, it would make no difference in result whether you used either of the other merchants and manufacturers assessments. The largest was in 1919, when it was $7,182,460, as against $3,843,920 in 1916. This would make an increase of $3,338,540 over 1916. If we take three per cent of this increase, we would have the debt-incurring power only increased by $166,927. Taking this from the excesses over 5 per cent in the tables above, it leaves large excesses on both May 27th and July 15th. We have used the year 1919 as to the merchants and manufacturers assessments, because it is the largest, and not because we meant to say that it was the proper assessment to be used. Even with its use the bonds are void, as being in excess of the debt-creating power of the city. Counsel for appellant do not claim that there is any way for a reversal of the instant judgment if the assessment of 1916 is made the basis. In view of the situation it becomes unnecessary to discuss (1) what assessment of merchants and manufacturers should be considered, or (2) whether the sinking funds in the hands of the city should be taken from the debts. This, because neither of the previous merchants' and manufacturers' assessments, when considered with the other property assessment of 1916, will change the result, and the tables above allow credit for money in sinking funds. It follows that the judgment nisi should be affirmed. It is so ordered.
All concur, Woodson, J., in separate opinion.