Summary
In State v. Smith, 335 Mo. 840, 74 S.W.2d 27, the Missouri Court, applying the substantial compliance rule, held that the election on an amendment to the Constitution was not invalidated because the four weeks' publication required by the Constitution was not immediately before the election, but the last publication was more than a week before.
Summary of this case from Morgan v. O'BrienOpinion
August 13, 1934.
1. STATUTES: Contingency: Bonds. A law may be enacted to become effective on the happening of a future event. Where an amendment to the State Constitution was voted, authorizing the contracting of a debt not exceeding $10,000,000, for the purpose of repairing, remodeling or rebuilding of eleemosynary and penal institutions of the State and the General Assembly had previously at the Extra Session of 1933-34, enacted a law creating a State Building Commission to determine the needs of eleemosynary and penal institutions and divide among them money realized from Federal aid and the sale of $10,000,000 of bonds to be issued, the law to take effect on the adoption of the proposed amendment by the people of the State, the State Auditor could not refuse to register the bonds.
In the provisions in the constitutional amendment that the bonds shall be issued by the State Board of Fund Commissioners, the word "issued" authorizes this board to sell the bonds. Where the State Building Commission issued bonds in pursuance of the constitutional amendment it was not necessary that the legislative act, creating the commission, should fix the amount of the issue, the rate of interest, the time of maturity of the bonds; those things within the limitations fixed by the Constitution are matters of minor detail and are properly left to the agency authorized to sell the bonds.
In the absence of legislative enactment on the subject, it would be the duty of the said agency to sell the bonds in the usual and customary manner by publicly advertising the same for sale.
2. CONSTITUTIONAL AMENDMENT: Submission to Vote. Where the General Assembly submitted to the voters of the State a constitutional amendment, required to be published as provided in Section 2, Article XV of the Constitution, the failure of the publisher of a newspaper in one county to comply with the provision of the Constitution did not invalidate the election, especially since the entire vote of that county if counted against the amendment would not have changed the result.
ALTERNATIVE WRIT MADE PERMANENT.
Benjamin H. Charles and Carl Trauernicht for relators.
(1) By the act approved January 9, 1934 (Laws Ex. Sess., 1933-34, p. 107) the Assembly has in fact made provision for the contracting of debts or liabilities of the State within the meaning and intent of Section 44d of Article IV of the Constitution. (a) If Section 44d of Article IV is not self-enforcing, the acts passed by the General Assembly at the same session which submitted the amendment to the people, constitute all the legislation necessary to carry the amendment into effect. (2) By the passage of the Building Commission Act (Laws Ex. Sess. 1933-34, p. 107) and the passage of the act approved December 14, 1933 (Laws Ex. Sess. 1933-34, p. 114), the Legislature must be understood as thereby intending to carry into full execution the provisions of Section 44d of Article IV, the amendment submitted by the same Legislature to a vote of the people. (3) If the amendment is not self-enforcing, and if said acts do not make it effective, then the whole purpose of both the amendment and the acts is defeated. (a) That purpose was to make Missouri a partner with the Federal Government and with the other states in the National Recovery movement. (b) If another act is necessary, such act would not be in effect for about a year from this time. Fahey v. Hackmann, 291 Mo. 351. (c) And if a referendum were invoked on such act, its effective date would be further postponed until after a favorable vote in November, 1936. (d) Such protracted delay would jeopardize the receipt by the State of any Federal funds for the State's building program. Indeed, it is almost certain that such funds would be lost. They would probably go to other communities. (e) All this the Legislature must be deemed to have had in mind when it was enacting legislation to further the State's building program. (4) So far as the building program is concerned, the legislation adopted contemporaneously with the amendment makes the amendment effective. The minor details of the bond issue, not treated by the amendment or by special legislative act, fall within the field of administrative determination. (5) The inference is that the Legislature considered a special bond enabling act unnecessary and superfluous. Any other inference drawn from the failure of the Legislature to pass such an act would contain sinister implications, which the court, of course, will not impute to the Legislature. (a) The Special 1933-34 Session of the Legislature had before it a bond-enabling act introduced on the very same day that Joint and Concurrent Resolution No. 1 (the amendment) was introduced and on the same day that the bill for the Building Commission Act was introduced, and on the same day that the bill authorizing the Governor to apply for Federal aid was introduced. Senate Journal 1933-34, Ex. Sess. p. 13. (b) The court will take judicial notice of legislative journals. 23 C.J., p. 102, sec. 1902; 15 R.C.L., p. 1110, sec. 41. (6) Respondent's chief reliance is upon the obiter dictum in Fahey v. Hackmann, 291 Mo. 351. (a) That obiter dictum is unsound. (b) The situation confronting the court in Fahey v. Hackmann is different from the facts and circumstances in the case at bar. (7) Whether Section 44d is self-enforcing or not is to be considered, not in the light of a judge's dictum in another case, but from all the circumstances surrounding the State, and surrounding the Legislature, last winter.
Roy McKittrick, Attorney-General, and Covell R. Hewitt, Assistant Attorney-General, for respondent.
(1) The amendment to the Missouri Constitution, Article IV, Section 44d, adopted at the special election in May, 1934, and authorizing the contracting of a debt and the issuance of bonds in a sum not exceeding ten million dollars ($10,000,000) at a rate of interest not exceeding five per centum (5%) per annum, and maturing not later than thirty-five (35) years from their date, is not self-executing, but requires a legislative act before the bonds can be issued or sold. Sec. 44d, Art. IV, Mo. Const.; Laws Ex. Sess. 1933-34, p. 174; Fahey v. Hackmann, 237 S.W. 761, 291 Mo. 351. (2) The failure of the Legislature to make suitable provision for rendering an amendment effective is no argument in favor of a self-executing construction of the amendment. 12 C.J. 730; Fahey v. Hackmann, 237 S.W. 761, 291 Mo. 351. (3) Constitutional provisions are not self-executing if the language of the Constitution is directed to the Legislature. 12 C.J. 730; 6 R.C.L., sec. 54, p. 58; State v. Kyle, 166 Mo. 287, 65 S.W. 763; Willis v. Mabon, 48 Minn. 140; State v. Lynch, 88 Ohio St. 71, 102 N.E. 672. (4) The requirement of the State Constitution (Article XV, Section 2), and our statute (Sec. 10384, R.S. 1929), provides for the publication of all constitutional amendments "for four consecutive weeks next preceding the general election then next ensuing." Art. XV, Sec. 2, Mo. Const.; Sec. 10384, R.S. 1929; Russell v. Croy, 164 Mo. 92.
Original proceeding in mandamus. Relators seek to compel the State Auditor to register certain bonds. The case was submitted on the pleadings, and the facts may be stated as follows:
An amendment to the Constitution was submitted to the qualified voters of the State by a resolution of the General Assembly. [Laws 1933-4, Ex. Sess., p. 174.] At the election it was approved by a majority of 121,588. The pertinent parts of the amendment follow:
"The General Assembly shall have power to authorize the contracting of a debt . . . on behalf of the State and to issue bonds . . . not exceeding in the aggregate Ten Million Dollars ($10,000,000), for the purpose of repairing, remodeling or rebuilding . . . the eleemosynary or penal institutions of this State . . .; such bonds to bear interest at a rate not exceeding five per centum (5%) per annum, payable semi-annually, and maturing not later than thirty-five (35) years from their date. Said bonds shall be issued by the State Board of Fund Commissioners in such amounts, from time to time, as may be necessary to carry on the building program herein provided for. The proceeds of the sale or sales of any bonds issued hereunder, together with any funds granted by or otherwise received from any agency of the Federal Government in aid of the purposes herein specified, shall be paid into the state treasury and be credited to a fund to be designated `State Building Fund,' and shall thereupon stand appropriated, without legislative action, for said purposes and for the payment of all expenses, incidental thereto. The proceeds of the sale of the Ten Million Dollars ($10,000,000) of bonds herein authorized shall be expended for the purpose of repairing, remodeling or rebuilding any of the public buildings of the State . . . devoted to eleemosynary and penal purposes, . . . and additional buildings where necessary."
The amendment provided in detail for the collection of taxes to pay the bonds and interest. It then provided as follows:
"All funds paid into the State Building Bond Interest and Sinking Fund shall be and stand appropriated without legislative action to the payment of principal and interest of the said bonds, there to remain until paid out in discharge of the principal of said bonds and the interest accruing thereon, and no part of said fund shall be used for any other purpose so long as any of the principal of said bonds and the interest thereon shall be unpaid. . . . The General Assembly shall enact such laws as may be necessary to carry this amendment into effect."
The auditor contends that there is no legislation "to carry the amendment into effect."
At the same session (Laws 1933-4, Ex. Sess., p. 107), the General Assembly enacted a law creating a State Building Commission. The act directed the commission to determine the needs of the eleemosynary and penal institutions and divide among them, according to said needs, the money realized from Federal aid and the sale of the ten million dollars of bonds to be issued under said amendment. It authorized the commission to acquire land; provide plans and specifications and make contracts in furtherance of the contemplated improvements. It provided that the expenses of said improvements be paid from the money realized from Federal aid and the sale of the bonds. It also provided that the law would take effect on the adoption of the proposed amendment by the people of the State. It is well settled that a law may be enacted to become effective on the happening of a future contingency. [State ex rel. Maggard v. Pond, 93 Mo. 606, l.c. 621, 6 S.W. 469; In re Poindexter v. Pettis County, 295 Mo. 629, l.c. 636, 246 S.W. 38.]
Thus it appears that legislation has been enacted in aid of the amendment.
Furthermore, at the time of the adoption of the resolution proposing said amendment, there was in existence an act of the Legislature creating a Board of Fund Commissioners as a part of the Treasury Department of the State. [Secs. 11489-11504, inclusive, R.S. 1929.] The act directs said board as to the redemption, issuance and cancellation of bonds of the State.
Furthermore, the constitutional amendment under consideration utilized this legislation by providing that the bonds "shall be issued by the State Board of Fund Commissioners." The word "issued" as there used authorizes said board to sell the bonds. [State ex rel. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167, l.c. 172.] In this connection it should be stated that it is provided in said act of the Legislature as follows:
"All bonds or state certificates of indebtedness hereafter issued by this State under the direction of the board of fund commissioners shall be signed by the Governor, countersigned by the Secretary of State, with the great seal of the State attached, and the coupons for interest shall have a facsimile of the State Treasurer's signature engraved thereon. The bonds shall be registered by the State Auditor, to which he shall certify on each bond, and authenticate such registration by his signature and his official seal attached. . . ." [Sec. 11500, R.S. 1929.]
But the auditor argues that the amount of the issue, rate of interest, time of maturity, and whether coupon or registered bonds, should be fixed by legislative enactment.
It is clear from a consideration of the constitutional amendment that the people intended a sale of all the authorized issue of bonds for the purposes therein stated. The rate of interest and time of maturity, within the limits fixed by the Constitution, and whether coupon or registered bonds, are matters of minor detail and are properly left to the agency authorized to sell bonds. Indeed, conditions could be such that legislation on the subject would interfere with a sale of the bonds.
He also argues that the method of selling the bonds should be fixed by legislative enactment. This also may be left to the agency authorized to sell the bonds. However, absent legislative enactment on the question, it would be the duty of said agency to sell the bonds in the usual and customary manner by publicly advertising same for sale.
He cites Fahey v. Hackmann, 291 Mo. 351, l.c. 378, 237 S.W. 752. In that case the question for determination was whether legislation in aid of a constitutional amendment authorizing a bond issue became effective under an emergency clause of the act, or whether it was subject to referendum. It follows that the statements in the opinion in that case with reference to the matter of fixing the amount of the issue, rate of interest and time of maturity of the bonds were unnecessary to a determination of the question under consideration. It also follows that said statements are no authority on the question under consideration in the instant case. We think there is ample legislative authority "to carry the amendment into effect."
The auditor next challenges the regularity of the submission of the amendment to a vote of the people. The election was held on Tuesday, May 15, 1934. In Oregon County notice of the election was published once a week on April 12, 19, 26 and May 3, 1934. This did not comply with Section 2, Article XV of the Constitution, which provides as follows:
"Each proposed amendment shall be published once a week for four consecutive weeks next preceding such election, in at least one newspaper in each county of the State where a newspaper is published."
The failure of the publisher of said newspaper to literally comply with this provision of the Constitution did not invalidate the election regularly held in the other counties in the State. If it did so, a newspaper publisher, under contract to publish the notice, could intentionally or negligently defeat any proposed amendment to the Constitution. We do not think this provision of the Constitution should be so construed. Furthermore, if the entire vote of Oregon County should be counted against the amendment, it would not change the result. On the facts of this case, the notice of the election in Oregon County was a substantial compliance with the Constitution. [State ex rel. Thompson v. Winnett (Neb.), 10 L.R.A. (N.S.) 149.]
The alternative writ should be made permanent. It is so ordered. All concur.