On motion for rehearing I have given further consideration to this case and believe the above opinion is erroneous in some particulars. I think that opinion is in error in holding that the case of Butler v. Andrus, 35 Mont. 575, 90 P. 785, was based upon the statute, now section 5039, subdivision 64, Revised Codes 1921. It is true that the statute and the particular language used in it was referred to, but the real basis for the opinion is section 6, Article XIII, of the Constitution. That section of the Constitution in substance authorizes the legislature to extend the limit of indebtedness by submitting the question to the taxpayers "when such increase is necessary to construct a sewerage system or *Page 71 to procure a supply of water." The statute considered in theButler Case, it is true, referred to "additional indebtedness," but the basis of the decision is the necessity that must be shown under the Constitution before the debt limit may be extended.
The court in speaking of the legislative Act in the ButlerCase said: "It is apparent that in enacting this provision the legislature intended to pursue strictly the provisions of the Constitution quoted." It also said: "The proviso under which the legislature may authorize an extension of the limit is also clear in purpose, to-wit, to allow an extension of this limit when such extension (increase) is necessary to construct a sewerage system or procure a water supply. It cannot be granted or be made available for any other purpose nor under any other circumstances than those which create the necessity for it." The court then proceeded to point out in effect that the legislature carried out the authority conferred by the Constitution, i.e., that the legislature recognized there must be a necessity for extending the limit before it may be done. The same is true of the case ofLepley v. City of Fort Benton, 51 Mont. 551, 154 P. 710. Hence it is my view that the curative Act, Chapter 17, Laws of 1933, has no application if, in submitting the question to the taxpayers, there was a failure to comply with the foregoing cited cases interpreting the constitutional provision.
I think the correct conclusion was arrived at in the opinion written by Mr. Justice Anderson, because the Constitution does not prescribe the manner in which the question of extending the debt limit shall be submitted. The manner in which it was submitted here, and the favorable vote on the question as submitted, was tantamount to securing consent of the taxpayers that the limit be extended for the full amount of $200,000. If a part of the $200,000 comes within the three per cent. limit, rather than the extended limit, no taxpayer could complain, nor would the validity of the bonds be affected. (Butler v.Andrus, supra.)
I agree, therefore, with the result reached in the foregoing opinion. *Page 72