This was a suit instituted in the Circuit Court of Buchanan County by plaintiffs, taxpayers, and on behalf of themselves and *Page 332 all others similarly situated, and against the defendants, to enjoin the City of St. Joseph, its Mayor and Comptroller, to restrain them, from issuing $1,850,000 of improvement bonds, purporting to have been authorized at a special election held for that purpose, on the grounds that the proceedings preliminary to the holding of the election, as well as the election itself, were invalid, and that the amount of the existing indebtedness of the city, added to the amount of said proposed bonds, exceeded the constitutional limit of indebtedness the city could incur.
A trial was had which resulted in findings for, and a decree for, the plaintiffs, enjoining the issuance of the bonds as prayed for in the petition, and the defendants duly appealed the cause to this court. The following facts are admitted:
"The Common Council of the City of St. Joseph enacted five special ordinances which were approved on April 21, 1919, each of which ordinances made provision for an issue of bonds for public improvement in said city, and ordered the submission of the ordinances to the qualified voters of the city for their approval or rejection at an election called for that purpose on the 27th day of May, 1919.
"Special ordinance No. 8143 was for $750,000 to be used in constructing public sewers.
"Special ordinance No. 8144 was for $500,000 to improve, extend and equip the city electric light plant.
"Special ordinance No. 8145 was for $50,000 to purchase motor equipment for the city fire department.
"Special ordinance No. 8146 was for $450,000 to acquire a site and erect, construct and equip a city hall.
"Special ordinance No. 8147 was for $100,000 to acquire a site and erect, construct and equip a city hospital for the treatment of contagious and communicable diseases.
"The election was held and the vote on the propositions ranged from a majority of 4½ to 1 to nearly 10 to 1 in favor of the bonds, as follows: *Page 333
"Special ordinance No. 8143 — for, 6061; against, 639.
"Special ordinance No. 8144 — for, 5550; against, 1202.
"Special ordinance No. 8145 — for, 6063; against, 632.
"Special ordinance No. 8146 — for, 5428; against, 1293.
"Special ordinance No. 8147 — for, 5836; against, 783.
"The petition assails the validity of the bonds on grounds that are separately stated and numbered from 1 to 13, only two of which were urged upon or presented to the trial court, and as we view the case, they are the only issues that can in reason be called debatable. They are:
"1. Did the city exceed the limit of its debt creating power?
"2. Was the notice of election published as required by law?
"The facts are:
"The assessed valuations for state and county purposes of all property in the city for the years in question are:
"1916 "Merchants and manufacturers ...........$ 3,843,920; "Other property ......................... 38,629,870. "1917 "Merchants and manufacturers ...........$ 4,790,000; "Other property ......................... 43,630,520. "1918 "Merchants and manufacturers ...........$ 6,635,570; "Other property ......................... 53,457,170. "1919 "Merchants and manufacturers ...........$ 7,182,460.
"The assessment of merchandise, raw material, etc., known as `the merchants' and manufacturers' tax,' is made between the first Mondays of March and June in each year, is equalized by the County Board of Equalization on the first Monday in September following (the State Board of Equalization having no jurisdiction thereover), and the tax on such assessment is payable on or before November 1st, following the assessment *Page 334 (Secs. 11620 and 11646, R.S. 1909). There is therefore a completed assessment of merchandise, raw material, etc., in each year — the year it is taken — while the assessment of other property is not completed until the year following that in which it is made.
"At the time of the trial of this case the merchants' and manufacturers' assessment for 1919 had been taken, equalized, and the tax had been payable for sometime — in other words, it was completed and the assessment of such property for 1918 was the assessment next before the last."
And it is contended by counsel for plaintiffs that: "The last completed assessment of other property was that of 1918, so that the assessment of such property for 1917 was the assessment next before the last. The aggregate of these gives the last complete assessment but one of all property in the city for state and county purposes, the total being $50,266,090, five per centum of which is $2,513,304.50."
The evidence showed that:
"On the day of the trial of this case, viz., October 15, 1919, the bonded indebtedness of the city was $622,250, and other indebtedness, including judgments both final and pending on appeal was $65,712.28, a total of $687,962.28. This added to the proposed bond issue of $1,850,000, would make a total of $2,537,962.28, or $24,657.78 in excess of five per centum of the assessed valuation which, as stated above, is $2,513,304.50. However, on the same day the amount in the sinking fund of the city applicable to the payment of the principal of the bonded indebtedness, and to no other purpose, was $185,727.02, and if this is properly deductible in determining the actual indebtedness it would be $161,069.24 less than five per centum of the assessed valuation."
The evidence also showed that:
"The proclamation of the Mayor calling the election was published in the St. Joseph Gazette, the official paper at the time, on April 29. May 5, May 12 and May 19 and thereafter daily to May 26 inclusive and the *Page 335 election was held May 27, 1919. There were therefore five weekly publications prior to, and the last within five days of, the election, covering a period of twenty-eight days, excluding the first day of publication and including the day of election."
Upon this showing counsel for the defendants contend that the publication of the notice of the special election was sufficient, and submits the following suggestions in support thereof:
"Notice of the special election was published as required by law.
"The publication required is: `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,' etc. [Sec. 8672, R.S. 1909.]
"The election was called for May 27, 1919. The proclamation was published, in the official paper (as well as in the News Press, the other daily newspaper), on April 29, May 5, May 12, and daily from May 19 to May 26, inclusive. The publication was therefore for four weeks, and excluding April 29, the first day of publication, and including May 27, the day of election, for twenty-eight days, for it covers one day in April and twenty-seven days in May, and the last publication, being on May 26, and the election on May 27, was `not more than five days prior to the time for election.' This under the above statute and the decisions, is a full compliance with the requirements of the statute."
Upon the other hand counsel for the plaintiffs contend:
"That none of the preliminary steps required by the law were taken by city prior to holding the election; that the ordinances providing for the election were invalid; that city had no power under its charter to conduct the election, and that the aggregate amount of the proposed bonds added to the existing indebtedness of the city at the time of the institution of the *Page 336 suit and at the time of the election and on the 15th day of July, was in excess of five per cent of the assessed valuation of the property in the city as shown by the assessment for state and county purposes, and that the proposed bonds to be negotiated would be issued in violation of Section 12, Article 10, of the Constitution of the State of Missouri.
"On the 2nd day of August, 1919, the defendants filed their answer, and thereafter, on the 15th day of October, the defendant refiled said answer, in which it was admitted that the defendants proposed to and were about to and would, unless restrained by the orders of the court, negotiate said bonds as authorized by said ordinances and the election held in pursuance thereof.
"The ordinances providing for the election and the issuing of the bonds were introduced in the Common Council of the City of St. Joseph on March 31, 1919, and on the 21st day of April, 1919, and ordinances were passed by the Common Council and approved by the Mayor on said date.
"On April 28, 1919, the City of St. Joseph, in pursuance of Section 8671, Revised Statutes 1909, presented the ordinances to the Judge of the Circuit Court in St. Joseph and obtained a certificate from him, as required by said section, of the amount of the city's indebtedness existing at said time and that the indebtedness might be as near as he could calculate at the date of the issue of the bonds therein provided, namely, July 15, 1919, and what was the value of all the taxable property in the city ascertained by the assessment next before the last assessment for the state and county purposes, and that in said certificate, it was stated by said judge in pursuance of the provision of said section that he was satisfied that the total amount of the bonds proposed to be issued by said ordinances could be issued without violating the Constitution of the State of Missouri, which said certificates were attached to said ordinances, as provided by said section. *Page 337
"Thereafter the city caused to be published in the newspaper doing the city printing a copy of the said ordinances, a copy of said certificates of the judge, and a proclamation of the Mayor, as required by Section 8672, Revised Statutes 1909, the first insertion being made on April 29, 1919, and followed by insertions on May 5, 1919, May 12, 1919, May 19, 1919, May 26, 1919. By virtue of Section 8859, Revised Statutes 1909, no ordinance passed by the council shall go into effect before ten days from the time of its final passage; the ordinance having been passed and approved by the Mayor on the 21st day of April, 1919, did not become effective as a law for ten days thereafter, which was the 2nd day of May, 1919. It will therefore be noticed that every preliminary step required by the law to be performed by the city before the holding of the election was taken by the city prior to May 2, 1919, the day upon which the ordinances became effective.
"The certificate obtained from the judge was obtained prior to the ordinances going into effect and the publication of the ordinances; the certificate of the judge and the proclamation of the Mayor, published on April 29, were published prior to the date of the ordinances becoming effective, and the publication date of April 29 should not be counted in the number of insertions required by the statute.
"Section 8672 requires that the publication shall be published once each week for four consecutive weeks, the last insertion to be not more than five days prior to the time for holding the election. The ordinances becoming effective on May 2, which was twenty-five days prior to the election, the election being held on May 27, were not and could not be published for four consecutive weeks, but were published for only twenty-five days."
After a careful examination of the record in this case we are perfectly satisfied that the notice of the special election was void for the reason that it was not *Page 338 published for four weeks — twenty-eight days — as required by Section 8672, Revised Statutes 1909, after the ordinance went into effect. The ordinance became effective May 2, 1919, and the election was held on May 27, 1919, three days less than the time required by the statute. The record further shows that:
"The valuation of the taxable property in the City of St. Joseph, as ascertained by the assessment next before the last completed assessment for state and county purposes, was the assessment made in the year 1916. The assessment for 1918 was not completed until after October 2, 1919. It was admitted at the trial that the State Board of Equalization did not complete the equalization of the assessment of railroads, bridges, telephones and telegraph properties in the City of St. Joseph for the year 1918 until the 2nd day of October, 1919, and that at the time of the trial on the 15th day of October, 1919, the county clerk was completing and extending the tax books for the taxes assessed for the year 1918 in pursuance of the equalization by the State Board of Equalization for the assessment of the year 1918. So on May 27, the date upon which the election was held, on April 28, the time at which the certificate from the Circuit Judge was obtained, and on April 29, the beginning of the first insertion of the publication as required by the statute, and on July 15, 1919, the date of the bonds as fixed by the ordinance and the date upon which, by virtue of Section 8674, Revised Statutes 1909, the second certificate is required by the statute to be obtained from the judge before the bonds can be sold, the assessment for 1918 was not completed. In the language of the Constitution the last completed assessment was the assessment for the year 1917, and the assessment next before that assessment was the assessment of the year 1916, which is the assessment used by the lower court at the trial. It is admitted in this case by the evidence and conceded by appellants that the total valuation of all taxable property in the City of St. Joseph as ascertained by the assessment *Page 339 for the year 1916 was $42,473,790, and that on May 27, 1919, the total indebtedness of the city, giving credit to the city on its bonded indebtedness for the sinking fund then existing and also the outstanding judgments, and not including judgments appealed from, together with the amount of the proposed bonds, was the total sum of $2,434,700.21 and that the proposed bonds exceeded the constitutional limitation in the sum of $311,010.71. The following table shows in detail the foregoing statement."
The Financial Statement of the City of St. Joseph as of Date of May 27, 1919 was:
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 _______________ 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 ............ 6,150.00 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 ............ 2,123,699.50 _____________ 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.
Assessment, 1916: Personal Property ......................... $ 4,740,080.00 Real Estate ............................... 29,687,520.00 *Page 340
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 ______________ Total Assessed Valuation .............. $42,473,790.00
Indebtedness:
Bonded Debt .................. $722,550.00 ___________
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
Counsel for plaintiffs further contend that:
"It is therefore apparent that the lower court was correct in making the injunction perpetual in this case, as the total amount of the bonds that the city was about to sell exceeded the constitutional provision on July 15 in the sum of $319,301.71, and on May 27, 1919, the bonds exceeded the constitutional provision in the sum of $211,010.71.
"If the assessment for 1917 be taken as the controlling assessment, as contended for by appellant, the proposed issue of bonds under the 1917 assessment is beyond the constitutional limit. The total assessed valuation of all properties in the City of St. Joseph as shown by the assessment of 1917 was $48,420,520, made up of the following items: All property subject to taxation, exclusive of merchants' and manufacturers' assessments, was the sum of $43,630,520; merchants' and manufacturers' assessment, $4,790,000; total $48,420,520. On May 27, 1919, the bonded indebtedness was $722,550, and giving credit to the city for its sinking *Page 341 fund of that date, which was $197,412,07, and deducting the sinking fund from the bonded indebtedness; leaves a balance of $525,137.93, representing the bonded indebtedness of the city. On said date the outstanding judgments were $65,712.28; deducting those judgments which had been appealed at the time, which amount to $6,150, the balance is $59,562.28; adding to these amounts the proposed bond issue of $1,850,000 makes a total indebtedness of the City of St. Joseph on the 27th day of May, 1919, of $2,434,700.21. Five per cent of the assessed valuation is $2,421,026. The difference between the total indebtedness and the five per cent of the assessed valuation makes the proposed bond issue in excess of the constitutional limitation in the sum of $13,674.21
"The total indebtedness of the City of St. Joseph on July 15, 1919, was as follows:
"Amount of outstanding bonds, $722,550; deducting amount of bonds redeemed of $10,300 from the above mentioned amount, leaves a balance of $712,250; giving credit to the city of the sinking fund of that date, which was $187,112.07, and deducting from said amount said sinking fund, leaves a balance of outstanding bonds $525,137.93. The outstanding judgments were $80,503.28; $12,650 of said amount was appealed, leaving a balance of outstanding final judgments against the city of $67,853.28; adding to these items the proposed bonded indebtedness of $1,850,000, we have a balance of $2,442,991.21. Five per cent of the total assessed valuation is $2,421,026. The balance shows that the proposed bond issue as of the date of July 15, 1919, was in excess of the constitutional limitation the sum of $21,956.21. So it would seem that whether the assessment of 1916 or the assessment of 1917 be taken as the basis of valuation, the proposed issue of bonds exceeds the constitutional limits."
No disinterested person can read this record without coming to the conclusion that the indebtedness of *Page 342 the city at the time of the proceedings authorizing the issuance of the bonds here in controversy, were had, added to the amount of the bonds proposed to be issued, would exceed five per cent of the aggregate assessed value of all the property assessed in the city, as shown by the last completed assessment made by the State Board of Equalization, at the time of the authorization of the issuance of the bonds, which, as previously shown, was in the year 1916 — the excess of those two indebtednesses at that time was $319,301.71 over the five per cent authorized by the Constitution, as previously shown, and should we take the year 1917 as the last completed assessment as being the proper year, still the existing indebtedness added to amount of the bonds proposed to be issued, would exceed the five per cent of the assessed valuation for that year by $21,965.21.
For the reasons stated we are of the opinion that the circuit court properly enjoined the defendants from issuing and selling the bonds. [State ex rel. Blades v. Wabash Railroad Co.,251 Mo. 134.]
Finding no error in the record, the judgment of the circuit court should be affirmed.