author: WOODSON, J.

text:
    THE STATE ex rel. JOHN T. BARKER, Attorney-General, v. ASSURANCE, COMPANY OF AMERICA et al.
    In Banc,
    June 28, 1913.
    1. CONSPIRACY IN RESTRAINT OF TRADE: Insurance Companies: Agreement to Withdraw from State. Foreign insurance companies, licensed to do business in this State, have a legal right, individually and of their own separate motion, to-withdraw from the State, and to discontinue the writing of-insurance contracts; but they do not have the right to- enter, into a joint agreement and confederation unitedly, on a day agreed upon, as the result of concerted action, to withdraw from the State and cease on that date to write insurance contracts, or unitedly to agree to cancel all contracts entered into by them. They have no more legal right to agree to do a lawful thing than they have to agree to do an unlawful act.
    2. -: -: Anti-trust Law in Force April 28, 1913: Oliver Law. The law of 1911, known as the Oliver Act, d,id not repeal the anti-trust laws then in force, either directly or by implication, and if any words in it could be construed to repeal them by implication they were invalid because there were no words in the title of the Act of 1911 to indicate that its purpose was to repeal the existing anti-trust laws. The Act of 1911 did not permit insurance companies to conspire for the purpose of withdrawing from the State or of limiting the amount of insurance that may be written in the State or of refusing to write insurance contracts or of canceling existing policies; and while the Act of March 29, 1913, repealed the anti-trust laws, it' also re-enacted them, in every respect, except by the addition of one new section, and hence the antitrust laws, namely chapter 98, R. S. 1909, were in force when this suit was brought on April 28, 1913.
    3. QUO WARRANTO: Injunction as Ancillary. The Supreme Court has jurisdiction to issue a temporary injunction in aid of or ancillary to a quo warranto writ pending therein, in order to stop the mischief complained of and to preserve matters in statu quo. The Supreme Court is given express authority to try a quo warranto, and wherever a court is given ex.press authority to try a cause it has the power to do all things that are incident to the trial, or that are necessary to be done in order to carry into full force and effect the judgment or decree the law authorizes the court to render. Where the Attorney-General charges, in an information in the nature of a quo warranto, that certain foreign insurance companies have entered into an agreement to unitedly withdraw from the State on a certain day, and to cease, by a concerted movement, to* write insurance contracts in the State, and asks that said agreement he declared unlawful and void, and that respondents be fined for entering into it, the court can also issue a temporary injunction restraining said companies from withdrawing from the State and otherwise doing irreparable injury to the business of the State and from canceling existing policies, pending a trial of said information.
    Quo Warranto.
    Demurrer overruled and temporary injunction issued.

      John T. Barker, Attorney-General, and W. M. Fitch, Assistant Attorney-General, for relator.

      Judson, Green & Henry, Lehman cB Lehman, Thomas Bates, Seymour Edgerton, Jones, Hooker, Hawes & Angert, Bruce Barnett and Clyde Taylor for respondents.
   WOODSON, J.

This is an information, in the nature of a quo warranto, instituted in this court, against the respondents, foreign fire insurance companies, duly authorized and licensed to do business in this State, to fine and otherwise punish them for violating the laws of the State regarding pools, trusts, conspiracies and discriminations.

The information charges that:

“The Amazonia Fire Insurance Company and others . . . are fire insurance corporations organized under the laws of other States or foreign countries, and are doing a fire insurance business in the State of Missouri, and at all the dates hereinafter mentioned were duly organized to do such business in the State of Missouri, having heretofore complied with the laws of the State of Missouri authorizing foreign fire insurance corporations to do business in this State; and at all times hereinafter mentioned respondents were engaged in the business of writing fire insurance contracts, policies and agreements insuring property from loss by fire or other causes, and conducting generally a fire insurance business throughout the State of Missouri; and that for many years respondents and each of them have been doing business in the State of Missouri with the consent of the State as foreign corporations and engaged in insuring property for the citizens and residents of Missouri against loss by fire and otherwise.
‘ That on the-day of April, 1913, each and all of respondents unlawfully, illegally and wilfully misused and abused their said franchises, rights and privileges as foreign fire insurance companies authorized to do business under the laws of the State of Missouri in this, to-wit : that on said date each of said respondents did create, enter into, become a member of and participate in a certain pool, trust, agreement, combination, confederation or understanding with each other and with other fire insurance corporations and associations of persons (whose names are unknown) against public policy and in restraint of trade, in this, to-wit : that on said date each and all respondents unlawfully, illegally and wilfully entered into an agreement to suspend operation and withdraw from sale all fire insurance in the State of Missouri, on the 30tli day of April, 1913, and unlawfully agreed to refuse to accept, write, issue or sell any insurance on any properties located in said State of Missouri, and unlawfully agreed to withdraw from said-State of Missouri by concerted movement simultaneously on said 30th day of April, 1913, and thus leave the citizens of the State of Missouri without adequate fire insurance protection, and unlawfully agreed to cancel all fire insurance policies heretofore written in the State of Missouri, which said action on the part of said respondents, if carried out, as they now propose, will cause a calamity in the financial world in said State of Missouri and leave the citizens of said State without any adequate fire insurance.
“Your informant further informs the court that the said unlawful agreement, combination, confederation, and conspiracy will affect the trade, traffic and commerce in this State, and that the same will be hin-. dered, injured and retarded and the people of the State, will, after said 30th day of April, 1913, be denied the right to purchase fire insurance and to protect themselves and their property against loss by fire.
“Your informant further informs the court that the general nature and object of the said combination, conspiracy and confederation, so made as aforesaid, is to act in a concerted manner, simultaneously, and with a view to crippling and destroying the financial credit of the State of Missouri and the people therein, and to deny to the State of Missouri and the people therein the right to protect their property by insurance against loss or damage by fire, and such conspiracy, confederation and agreement is against public policy, in restraint of trade, and is intended at one blow to crush the entire business and commerce of the commonwealth of the State of Missouri.
“Tour informant further informs the court that respondents and each of them are associated together in a common organization or interest called the ‘Western Insurance Bureau,’ which bureau is organized for the purpose of controlling the insurance business of the United States and particularly in Missouri, and for the further purpose of controlling, managing, regulating and conducting the entire insurance business in the State of Missouri, and that respondents and each of them are members of such insurance organization and association, and by the scheme of said association and respondents and each of them such association is authorized and empowered to and does approve rules and regulations for the government of the entire association and all of the members thereof and of each and all of the respondents herein, and when said rules and regulations are so fixed, as they now are, each member and each respondent herein is called upon and required and compelled by the rules of said association and by the rules of the respondents herein to obey, and that said association .and that each of respondents do obey such rules, and that when said respondents created, entered into and became a member of and participated in such illegal agreement and combination and understanding with each other and with such association to suspend business and withdraw all fire insurance from sale in the State of Missouri, and to withdraw by such concerted action from such State, each of said respondents are required and commanded, by the rules and understanding between the said association and respondents and each of them, to comply therewith, and to suspend operation in said State of Missouri and to withdraw therefrom and to withdraw from sale all fire insurance in said State, and such understanding, agreement, confederation and combination is an abuse of the corporate privileges of each of said respondents and in violation of the laws of the State of Missouri, against public policy and is in restraint of trade.
“Your informant further informs the court that there has been promulgated by said association and by each of respondents herein, and approved by such association and by each of respondents herein, rules for the control of the members thereof, by which it is provided that no member of such association of insurance companies, including each of the respondents herein, shall write or sell insurance in the State of Missouri after April 30, 1913, and each of said respondents, as members of such insurance association and individually has illegally agreed to suspend operation and withdraw from sale all fire insurance in said State of Missouri on said April 30, 1913, and to withdraw in a concerted movement from said State of Missouri, and that by the rules of such association each and all of the respondents herein are compelled and required to withdraw from said State of Missouri, and to suspend operation therein and. to withdraw from sale all fire insurance in said State, so that said association of insurance companies and the respondents herein have placed in the power of such insurance association to authorize and compel each insurance company named herein to immediately withdraw from said State of Missouri, and to suspend operation therein and to withdraw from sale all fire insurance in said State, thus leaving the people of the State of Missouri without any protection against loss by fire, and to prevent citizens of the State of Missouri from securing any fire insurance and thus injure and destroy the commercial value of the State of Missouri, and to deprive the citizens of said State of Missouri of the right which they have heretofore enjoyed of having their property insured by said respondents or either of them, against loss by fire, and that each of said respondents entered into such illegal agreement with, the express and avowed purpose of injuring and destroying the credit and commercial value of the State of Missouri.
“Your informant further informs the court that the object and purpose of such association which met as aforesaid on April —, 1913, was and is to stifle competition in the insurance business in the State of Missouri by withdrawing its membership and refusing-to write insurance and thus lessen competition in the insurance business in said State of Missouri, and to deny to the citizens of said State of Missouri the right to purchase fire insurance, and each and all members of such association and the respondents herein are banded together for a common -cause to injure and destroy the value of property in the State of Missouri and are acting in a rebellious and retaliatory manner and are now threatening to immediately suspend operation and to withdraw from the State of Missouri in a concerted movement on the 30th day of April, 1913, and that respondents and each of them are now actively.and earnestly engaged in carrying out said purpose by the use of every means known to them, and are now preparing to and are suspending business and withdrawing fire insurance from sale in the State of Missouri, and are refusing, by reason of such concerted movement and for the purposes aforesaid, to insure property against loss by fire in the State of Missouri.
“Your informant further informs the court that these respondents and each of them in order to carry out the scheme of such association to create a monopoly in the insurance business in the State of Missouri and lessen competition have combined and conspired and confederated with each other and with other members of said association (whose names are unknown) and with the officers and agents and members of other associations in similar insurance business, and organized for a similar purpose, to harass and embarrass the citizens of the State of Missouri, and tc injure and destroy the business of the citizens of the State of Missouri and to destroy the commercial credit of the State of Missouri and thus create a financial panic in said State of Missouri and a calamity which'will affect each and every citizen of the State of Missouri of the right to purchase insurance on his buildings and other property.
“Your informant further informs the court that in furtherance of such illegal conspiracy and agreement on the part of respondents these respondents and each of them and the association aforesaid have Issued circulars containing declarations that they will suspend operation in the State of Missouri, and withdraw therefrom, and refuse to write or sell insurance therein, and that they will cause all members of said association, including each of respondents, to cease from writing or selling insurance in the State of Mis'souri and to cause them to suspend operation therein, thus leaving the people of the State without any fire protection, and that respondents, in pursuance of such illegal understanding, agreement and conspiracy, are now threatening to withdraw from the State of Missouri by a concerted movement on April 30, 1913, and are threatening to refuse to write or sell insurance on property in the State of Missouri after such date.
“Your informant further informs the court that the respondents herein constitute practically three-fourths of the fire insurance companies doing business in the State of Missouri and perhaps more, and that by reason of such illegal acts and conduct on the part of the respondents and each of them, coupled with their recent threats to withdraw from the State of Missouri, the people of this State will be left without .any fire protection and the business of the State and of the citizens therein will be seriously impaired, the commercial loan value of buildings destroyed, and the citizens will be denied the right to protect themselves against loss by fire, and that each of said agreements and each of them is in restraint of trade, against public policy, and in violation of the law.
“Your informant further informs the court that by reason of the premises said respondents and each of them since the-day of April, 1913, and up to the present time, grossly offended against the laws of this State and wilfully and flagrantly abused and misused their rights, authority and franchises and have wilfully and unlawfully assumed and unlawfully and wilfully usurped authorities and privileges not granted to said corporation by the laws of the State of Missouri, by entering into and becoming a member of said trust, combination, confederation, agreement and understanding as aforesaid; and in pursuance of the aforesaid agreement, combination, trust, confederation and understanding so made and maintained as aforesaid, respondents are now, in the State of Missouri, unlawfully and wilfully carrying out the provisions of said combination and confederation and threatening to leave the State of Missouri and to suspend business therein and to withdraw fire insurance from sale in said State on said 30th day of April, 1913, thus leaving the citizens of this State without any protection against loss Toy'fire, and are now unlawfully and wilfully attempting to carry out such unlawful agreement, combination and understanding, and that the acts and agreements of the respondents, insurance corporations, as herein set forth, constituted a wilful and malicious perversion of the franchises granted to said insurance corporations by the State of Missouri, and is an illegal and wilful usurpation of privileges and authorities not granted said respondents by the State of Missouri, to the great and permanent injury of the entire public.
“Wherefore, your informant, prosecuting in this behalf for the State of Missouri, asks that each of these respondents be adjudged guilty of creating, entering into and becoming a member of and participating in a certain pool, trust, agreement, combination, confederation or understanding with each other and other fire insurance corporations, and that such agreement, understanding and conspiracy, so entered into, be declared illegal and void, and respondents and each of them be forbidden to again enter into such illegal agreements, combinations and confederations and that their acts in becoming members of such combination, confederation and understanding be declared void, and that respondents, and each of them, be fined in such sum as the court thinks will punish them, and cause others to refrain from doing similar acts, and that the court will restrain respondents and each of them from canceling, in pursuance of this illegal agreement, all policies or agreements of insurance heretofore issued, or direct respondents, and each of them, to show cause why they should not be thus restrained, and for such other and further orders and relief as to the court shall seem meet, just and proper.”

Upon the filing of this information this court, by an order duly made on April 28, 1913, required respondents and each of them to show cause why they and each of them should not be adjudged guilty as charged in the information of a conspirancy in violation of their charter powers and licenses for their acts as aforesaid; and in addition to such order to show cause, the respondents and each of them were restrained and enjoined, individually and as parties to such illegal conspiracy, agreement and understanding, from canceling any and all policies in force in this State in pursuance of and by reason of such illegal agreement. The respondents and each of them were given until the 8th day of May, 1913, on which to respond to said order to show cause, and also in which to show cause why a temporary injunction should not be issued against the respondents and each of them, •to prohibit them and each of them from canceling the insurance now in force on property in this State under and in pursuance of such illegal agreement.

All of the respondents were duly served with process, and all appeared by counsel.

On the 8th day óf May, 1913, the defendants, the Stuyvesant Insurance Company and the Pacific Fire Insurance Company, filed their answers by their respective attorneys, and all of the other defendants appeared and filed their general demurrer to the bills and complaints of the State.

The Massachusetts Fire and Marine Insurance Company appeared for this purpose by their attorneys, Jones, Hooker, Hawes & Angert.

The St. Paul Fire and Marine Insurance Company appeared by their attorney, Clyde Taylor.

The Buffalo-German Insurance Company appeared by its attorney, Bruce Barnett.

All of the other respondents appeared by their attorneys, Judson & Green, F. W. Lehman, Thos. Bates et ah, and filed their general demurrers herein.

The grounds of the demurrer are:

First: That the petition does not state facts sufficient to constitute a cause of action against them or any of them.

Second: That the State is not entitled to the relief prayed for, or any other relief in this cause.

Third: That there is no law prohibiting the defendants or any of them from entering into the agreement of the nature set out in the information.

I. At this stage of the case there are only two legal propositions presented for determination, and they are presented by the demurrer. The first is, Does the petition state facts sufficient to constitute a cause of action? and the second, Has this court the authority to issue a restraining order or injunction in aid of a cause of action which this court has jurisdiction to hear and determine?

We will dispose of these questions in the order stated.

Attending the first: Counsel for respondents clearly and tersely state their position regarding this proposition in the following question propounded, viz.: “Must foreign insurance companies doing business in this State, continue to do such business, even though they are unwilling to accept the terms and conditions prescribed by the statute upon which the business may be done, and especially where, as here, those terms and conditions were radically changed by the State after the companies came into its jurisdiction and the companies have never assented to the change?”

As an abstract legal proposition, no court, in my opinion, would hesitate a moment to answer that question in the negative; but that question does not incorporate the entire case presented' by the information filed by the Attorney-General. In other words, his charges are broader than the question, in this: He charges that the “respondents did create, enter into, become a member of and participate in a certain pool, trust, agreement, combination, confederation or understanding with each other and with other fire insurance companies and associations of persons (whose names are unknown) against public policy and in restraint of trade, in this, to-wit: that on said date each and all respondents unlawfully, illegally and wilfully entered into an agreement to suspend ■ operation and withdraw from sale all fire insurance in the State of Missouri, on the 30th day of April, 1913, and unlawfully agreed to refuse to accept, write, issue or sell any insurance on any properties located in said State of Missouri; and unlawfully agreed to withdraw from said State of Missouri by concerted movement simultaneously on said 30th day of April, 1913, and thus leave the citizens of the State of Missouri without adequate fire insurance protection, and unlawfully agreed to cancel all fire insurance policies heretofore written in the State of Missouri, which said action on the part of said respondents, if carried out, as they now propose,” would cause great damages, etc., to the State and the citizens thereof.

By this language, it is seen that the Attorney-General does not seek to prevent -any one or all of the respondents acting for itself or themselves individually, upon its or their -own volition, from leaving the State or to prevent such company or companies, if so acting, from canceling any or all of their policies insuring property in this State; but he does seek to prevent respondents from leaving the State in a body or as a body to cancel all of their policies in this State in pursuance to the unlawful, illegal and wilful conspiracy he alleged they have entered into for the purpose of damaging the State and the citizens thereof.

There is a broad distinction between the two propositions. Under the former each and every one of the respondents may individually, of its own motion, leave the State and cancel each and every policy it has in force therein, if it sees proper to so do, provided of course, the policy contains a provision permitting its cancellation. But this is not true under the latter proposition, because respondents have no more legal right to unlawfully agree to do a lawful thing, than they have to agree to do an unlawful act. [State ex inf. v. Standard Oil Co., 218 Mo. 1. c. 367, and cases cited.]

If any one or more of the respondents feels itself or themselves aggrieved because of the enactment of the statutes of 1913, known as and called the “Orr Acts,” then there is no valid reason, legally or morally, why it or they should not be permitted to leave the State, but in doing so, they have no legal or moral right to enter into an unlawful conspiracy with themselves or with other companies and by agreement in pursuance thereof induce or agree with all the others to leave in a body or severally, for that matter, if it is, as stated, done in pursuance to such unlawful conspiracy.

The principle of law is so well settled in England and America, under both the common law and the statutes governing the same, it seems to me that it would be useless to cite authorities in support thereof.

Since writing the above, it has occurred to my mind that the writer had occasion to consider the principle underlying this case, in the case of Lohse Patent Door Company v. Fuelle, 215 Mo. 421. That case involved the questions of unlawful conspiracies to injure others, and the authority of the court to resort to- injunctive relief in aid thereof.

Counsel for respondent, in that case, cited the case of Hunt v. Simonds, 19 Mo. 583, which seems to hold to the contrary, but we refused to follow the doctrine announced in that ease, and followed the better considered cases, which are as old as the common law, which hold that two or more persons have no legal right to unlawfully conspire to injure another, even though each separately had the legal right to do what the combination had agreed to do.

■Ye are, therefore, of the opinion that the respondents had no legal right, by agreement, to withdraw from the State, in a body, in pursuance to said unlawful agreement, or to cancel their policies upon property in this State in pursuance to said agreement.

II. If we correctly understand the position of counsel for respondents, they do not, as a general proposition, seem to controvert the proposition stated and conclusions reached m paragraph one of the opinion, but insist that, at the time of the making and entering into the agreement or conspiracy complained of, there was no law in this State, which prevented them from so doing.

This insistence, in our opinion, is untenable.

Prior to 1911 the business of fire insurance was by express terms included within the anti-trust laws of the State. See chapter 98, Revised Statutes 1909. This chapter placed under the ban “any pool, trust, agreement ... to regulate, control or fix ... . the price or premium to be paid for insuring property against loss or damage by fire, lightning or storm, or to maintain said price when so regulated or fixed.” This statute was sustained as valid and applying to insurance companies in State ex inf. v. Insurance Cos., 150 Mo. 113.

This chapter, it is insisted, in so far as it related to insurance companies, was repealed in 1911 by what was known as the “Oliver Law.” [Laws 1911, pp. 267-271.]

We must, therefore, consider the following matters as a basis for this proceeding, as to whether or not the anti-trust laws are in force in this State, as regards insurance companies so as to prohibit them from entering into the agreement complained of in the information filed by the Attorney-General in this case.

Counsel for respondents contend that the “Oliver Law” (Laws 1911, pp. 267-271, secs. 1 to 12 inclusive) repealed all prior laws of the State applicable to that subject, which are contained in article 1, chapter 98, Revised Statutes 1909, entitled, “Pools, Trusts, Conspiracies and Discriminations.”

The Oliver Act which' was approved March 18, 1911, does not purport in terms to repeal any pre-existing laws, but upon the contrary, section 11, by necessary implication, repels any such conclusion to be drawn therefrom, for it in express terms provides that “all laws and parts of laws in conflict with this act are hereby repealed,” and consequently all laws and parts of laws not in conflict therewith are not repealed thereby,' but are left in full force and effect. That is the common sense of the language used, and the clear design the Legislature had in mind when it enacted it.

The Oliver Act, however, was in express terms repealed by an act of the Legislature, approved March 29, 1913. [Laws of 1913, p. 382.] And an act of the Legislature approved March 29, 1913 (Laws 1913, pp. 549 to 555 inclusive), repealed article 1 of chapter 98, Revised Statutes 1909, composed of sections 10299 to 10313, both inclusive, entitled, “Pools, Trusts, Conspiracies and Discrimination,” and re-enacted in lieu thereof, an act to be known as article 21, chapter 98, Revised Statutes 1909, entitled “Pools, Trusts, Conspiracies and Discriminations. ’ ’

The only difference between the article repealed and the one enacted is, that the latter added to the former a new section numbered 10313a.

This new section prescribes what .shall be prima facie evidence of guilt in prosecutions of insurance companies for violating the provisions of said article, but what the object or purpose of the framer of the bill was, or the intention of the Legislature in enacting it, is not clear, for if the Oliver Act repealed said article 1, as counsel for respondent contend, then there was no useful purpose served by the Legislature repealing it again on .March 29, 1913, and if not repealed thereby, then I can see no wise purpose in repealing it in one breath and re-enacting it in the next;

But whatever may have been the purpose of the Legislature in so acting it has but little or no bearing upon the question in hand, namely: Were there any anti-trust laws in force in this State at the date of the formation of the conspiracy complained of in the information?

By reading the Oliver Act, it will be seen that neither the title thereto nor the body of the bill mentions or refers to pools, trusts, conspiracies or discriminations, nor to the chapter' or article of the statutes containing said laws.

It is therefore perfectly clear to my mind that the Legislature had no such purpose in view.

But suppose it be conceded that the Legislature did intend thereby to repeal the anti-trust laws of the State in so far as they relate to fire insurance companies, then the act would be unconstitutional, null and void, because there is nothing’ contained in the title of the bill calling that subject to the attention of the legislators, as commanded by section 28 of article 4 of the Constitution, which, in so far as is here material, reads as follows: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”

The title of the act reads: “An Act to regulate insurance against loss or damage by fire, lightning, hail, windstorm and sprinkler leakage, and the rates of premium thereon and to provide penalties for the violation of its. provisions, with an emergency clause. ’ ’

Clearly there is nothing in this title that points to the anti-trust laws of the State, like a signboard points to a city, as was stated by Sherwood, J., in the case of St. Louis v. Weitzel, 130 Mo. 600, 1. c. 616, in the following language:

“The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guide board, indicate the general contents of the bill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if-they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”

But independent of that, there is nothing contained in the body of the Oliver Act which can form even a plausible basis for tbe contention that it repeals tbe anti-trust laws of the State, in so far as tbey refer to fire insurance companies, unless it is tbe following language contained in section 4 thereof, wbicb reads as follows:

“Provided further . . . any one or more of such companies singly or jointly may employ for tbe making of such general basis schedules and rates and tbe filing of tbe same tbe services of such experts as it, or tbey, may deem advisable for such purpose.”

Should it be conceded that it was tbe design of the Legislature, by this provision of that section, to repeal tbe anti-trust laws in so far as - authorizing tbe companies in making and fixing rates are concerned, yet there is nothing contained in this record wbicb shows that respondents or any of them have availed themselves of that clause by complying with its provisions in reference to filing with tbe Insurance Commissioner general and special schedules of rates for each city, town or village in tbe State, etc. But waiving that point, and conceding that they have fully complied with all of said act; yet it cannot be seriously contended that said clause of said section four, of the Oliver Act repeals anything contained in tbe antitrust laws, except that clause of section 10301, Revised Statutes 1909, wbicb forbids all agreements among insurance companies to fix the “price or premium to be paid for insuring property against loss or damage by fire, lightning or storm,” etc., yet that act does not authorize them to combine or conspire for tbe purpose- of charging a fixed rate irrespective óf tbe ruling of tbe Insurance Commissioner as to tbe reasonableness of that rate; nor does it authorize them to conspire for tbe purpose of withdrawing from tbe State or to limit tbe number of companies wbicb shall do business herein; nor for tbe purpose of preventing tbe writing of all insurance available or limiting the amount of insurance that may be written in tbe State; nor for the purpose of canceling any or all insurance now in force herein. This is too plain for argument.

Moreover, when we consider the growth and great evils of the trusts and combines, and the legislation enacted, in almost if not all of the States and Territories of the Union and by the Congress of the United States, to suppress and destroy them, it is almost inconceivable to believe that it was the design of the Legislature of this State, at a single stroke, to repeal all laws regarding this, one of the oldest and greatest trusts that exists in the country.

If I remember correctly this is one of the first trusts this court declared was illegal, and in consequence thereof imposed heavy fines against the various companies which were members thereof.

I am, therefore, firmly of the opinion that not only the anti-trust laws of the State, common law or statutory, are in full force and effect, but also that the information filed charges a good cause of action against the respondents.

III.- This brings us to the consideration of the question, has this court the jurisdiction to issue a restraining order or temporary injunction which is in aid of or ancillary to the quo warranto proceeding pending herein?

When this question was first suggested, I was of the opinion that we had no such authority, but after a thorough investigation of the question I have changed my mind and am now of the opinion that this court has that power.

Mr. High, in his estimable work on Injunctions (4 Ed.), pages 7, 8 and 11, sections .4, 5 and 7, in treating of temporary injunctions, among other things, says:

“4. The sole object of an interlocutory injunction is to preserve the subject in controversy in its then condition, and, without determining any question of right, merely to prevent the further perpetration of wrong, or the doing of any act whereby the right in controversy may be materially injured or endangered. It cannot be used for the purpose of taking property out of the possession of one party and putting it into the possession of another, nor does it go to the extent óf ordering defendant to undo what he has already done, since it might thereby be productive of as much injury to defendant as that of which the party aggrieved complains. The jurisdiction, therefore, being exercised to prevent the further continuance of injurious acts, rather than to undo what has already been done, on an interlocutory application for an injunction, courts of equity will only act prospectively, and will interpose only such restraint as may suffice to stop the mischief complained of and preserve matters in statu, quo. And where the granting of an inter-locutory injunction involves the decision of a novel question of law of grave importance and serious difficulty, the injunction should be denied. And the court should not, upon an interlocutory application, enter a final decree granting a perpetual injunction.
“5. It is to be constantly borne in mind that in granting temporary relief by interlocutory injunction, courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the property or rights in issue in statu quo until a hearing upon the merits, without expressing, and indeed without having the means of forming a final opinion as to such rights. And in order to sustain an injunction for the protection of property pendente lite it is not necessary to decide in favor of plaintiff upon the merits, nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction, although his right to the relief prayed may ultimately fail. Nor is the decision of the court in' granting or refusing a preliminary injunction conclusive upon either the court or parties on the subsequent disposition of the cause by final decree. . . .
“7. Except in cases of special injunctions to stay waste or prevent other irreparable injury, the bill should generally show some primary equity in aid of which the injunction is asked, and the relief is granted as ancillary to or in support of the primary equity whose enforcement is thus sought. And it is incumbent upon the party seeking relief by interlocutory injunction to show some clear legal or equitable rights, and a well grounded apprehension of immediate injury to those rights. ’ ’

The information in this case charges the respondents with a violation of the anti-trust laws of the State, and that thereby they have usurped authority and powers not granted to them by their licenses to do business in this State, for which the Attorney-General asks that they be fined and otherwise punished; and. in addition thereto the information charges that respondents in pursuance to said usurpation ¿nd abuse of power, are threatening to and will commit an irreparable injury to the State and the citizens thereof; if .not restrained or enjoined from so doing during the pendency of the suit.

A similar question came before the Supreme Court of Ohio in the case of State ex rel. v. Board of Supervisors, 70 Oh. St. 341. In that case, as in this, it was contended by the respondents that under the Constitution of that State, the Supreme Court had no-jurisdiction to issue a temporary injunction in aid of the quo warranto proceeding therein pending. . The Constitution of Ohio in regard to issuing original writs is practically the same as ours, and neither in express terms authorizes the Supreme Court to issue an injunction; but that court held that .it had the implied or inherent authority to issue an injunction in aid of a quo warranto proceeding pending therein, which it unquestionably had jurisdiction to try and determine. In discussing that question the court said:

“It is urged that we are without authority to make the order which the motion contemplates. The present action is a resort to our original jurisdiction. That we have not original jurisdiction of suits for injunctions is entirely clear. If the language of section 5573, Revised Statutes, should be thought appropriate to confer it, the effect to be given to that section would, nevertheless, be indicated by section two of article four of the Constitution, which ordains that ‘it [the Supreme Court] shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may-be provided by law.’ Applying to this grant the maxim, Expressio unius est exclusio alterius, the conclusion is irresistible that the General' Assembly cannot add to the enumerated subjects of our original jurisdiction. [Marbury v. Madison, 1 Cranch, 49; Kent v. Mahaffy, 2 Ohio St. 498.] But our original jurisdiction in quo warranto is not doubted, and we have to inquire whether the desired order may be made in its exercise. In the' consideration of that question the case of Yeoman v. Lasley, 36 Oh. St. 416, is suggestive. The proceeding in this court was for the reversal of a judgment which the district court had rendered in a suit for the foreclosure of a mortgagor’s equity of redemption. An injunction was not sought in the original suit, nor was a right to that relief presented to the court below or considered by it. The question for ultimate determination by this court was whether the district court had erred in the decision of the case which has been presented to it. But this court, upon an application originally made here, allowed an injunction in favor of one of the parties to the proceeding in error and against his adversary for ‘the protection of the rights of the parties in the suit or matter under review, on error. ’ It is true that it is said in the opinion that in allowing the injunction the court was exercising appellate, and not original, jurisdiction. But as it was not a part of the jurisdiction invoked by the suit and exercised or refused by the district court, it could be regarded as appellate jurisdiction only because the order to be made was necessary to the proper and effective exercise of the appellate jurisdiction to reverse the judgment which the district court had rendered in the suit to foreclose. It has not been suggested, and it obviously could not be maintained, that our authority for the exercise of the original jurisdiction which the Constitution confers upon us is less complete than for the exercise of the appellate jurisdiction which we derive from the statutes. The pertinent inference from the case cited is that a court has authority to make any judicial order which, from the nature of the case, may be necessary to the effective exercise of its jurisdiction, whether original or appellate. Jurisdiction is the power to hear and determine the subject-matter in controversy between the parties to a suit. Authority to determine is exercised in the form of judgments, decrees and orders, and it implies power to make all such orders as may be appropriate to the case presented and necessary to give practical effect to the final judgment, as well as to preserve the subject of the action, pending the.final determination of the case. In Kerr at al. v. Trego, 47 Pa. St. 292, it is appropriately said that ‘all bodies, except the Legislature, are under law, and therefore for all transgressions of the law are subject to the judicial power established by the Constitution.’ This is a public action, and its subject is the administration of the laws which provide for the conduct of popular elections. The more limited subject of inquiry started by this motion is the administration of those laws pending the ease in quo warranto. Since the principal action involves its incidents, the court of common pleas, which alone has original jurisdiction of suits for injunctions, cannot with propriety exercise that jurisdiction with respect to the subject of the action which is pending here; and it is entirely clear from the decisions already adverted to, as well as from the obvious force of the reasons involved, that those having the apparent right should be protected in the exercise of these public functions. The power to grant an ancillary injunction for that purpose is inherent in the court which has jurisdiction of the principal subject. The case is novel.only in the application of familiar principles of obvious necessity.”

That ruling, in my opinion, is unquestionably correct, for it would be useless for a court to try a cause if it had no authority or means by which it could enforce or protect the rights and interests of the parties involved therein after they had been adjudicated.

It seems to me to be unanswerable to say that where a court is given express authority to try a cause, it must also by implication, have the power to do all the things that are incident to that trial, or are necessary to be done in order to carry into full force and effect the judgment or decree the law authorizes the court to render therein. [Shull v. Boyd, 251 Mo. 452.]

It is not doubted but that this court has jurisdiction to try and determine a quo warranto proceeding, which this is, and if it is necessary, as it appears to be by the information filed in this case, to preserve the statu quo of the parties to the suit am] the rights involved therein to issue a temporary injunction during the pendency of the proceedings, in order that full force and effect may be given to the judgment which may be rendered herein, then I think the court has the implied, if not the inherent power, to issue a temporary injunction in aid of the quo warranto proceeding.

I am, therefore, of the opinion that the demurrer should he overruled, and that a temporary injunction should issue.

All concur as to paragraphs one and two, except Walker, J., who dissents from the opinion in toto; Bond, J., concurs in result; Lamm, G. J., and Graves, and Bond, JJ., concur in the third paragraph; Brown, Walker and Faris, JJ., dissent as to the third paragraph.


source: Caselaw Access Project

author: WALKER, J. BOND, J.

license: Public Domain

text:
    THE STATE ex rel. CITY OF DEXTER v. JOHN P. GORDON, State Auditor.
    In Banc,
    June 28, 1913.
    1. CITY INDEBTEDNESS: Constitutional Limitation ' Prohibitory: Strictly Construed. The provisions of sections 12 and 12'a of article 10 of the Constitution, declaring that no ' city shall be allowed to become indebted in excess of ten per cent of “the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of, said indebtedness,” are prohibitory self-enforcing, and to be strictly observed.
    2. -: What Assessments are Meant: Must Be Those Completed by State Board. The assessments to be considered in determining whether a proposed indebtedness exceeds the constitutional limitation, in view of the words that such indebtedness cannot exceed ten per cent of “the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes,” are the two successive, antecedent, completed assessments made by the State Board of Equalization previous to incurring the indebtedness; that is, previous to the time of the popular election to increase the indebtedness. If it was proposed to hold an election in August, 1912, to increase the city indebtedness, and the assess- , ment as of June 1, 1911, had not then been completed by the State Board of Equalization, the taking of the assessment as of June 1, 1910, as the basis, would not be in compliance with . the Constitution, for its language means that it must be “the assessment next before” that completed assessment. The assessment that the Constitution contemplates was the one as of June 1, 1909, and if the taxable value of the property within the city, as shown by that assessment, was $485,466, a bond issue of $53,000, voted in August, 1912, was in excess of the constitutional limit, and the State Auditor properly refused to register them.

      Meld, by BOND, J., dissenting, with whom GRAVES and FARIS, JJ., concur, that the indebtednes is not incurred until the bonds are authorized by the city council, after a vote of the people authorizing the indebtedness; and if at that time, the assessment for 1911 had been completed by the State Board of Equalization, although it had not been completed at the time of the popular vote, the assessment of 1910 should have been taken as the basis for ascertaining the amount of debt the city might incur; and as the vote was taken in August, 1912, and the State Board completed the assessment for 1911 in September, 1912, and the city council by ordinance in October, 1912, authorized the issuance of the bonds, the two assessments properly considered were those of 1911 and 1910, and the one of 1910 was “the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness,” and as that assessment showed an assessed valuation of $557,786, bonds to the amount of $53,000 were legal.
    3. -: -: Duty of Auditor. The State Auditor is not a judicial officer, but every executive officer when called upon to act officially must determine whether upon the facts the law requires him to do a certain thing.
    Mandamus.
    Wbit denied.

      Thomas N. Dysart for relator.
    (1) An assessment cannot be considered completed until'it has passed the State Board of Equalization. Prickett v. Marceline, 65 Fed. 469; Lake County v. Standley, 24 Colo. 1; McLean v. Valley County, 74 Fed.'389. (2) The limit of indebtedness is determined by the assessed valuation in force at the time bonds are issued and not by the time they are voted. 1 Dillon on Municipal Corporations (5 Ed.), sec. 207; Corning v. Mead County, 102 Fed. 57; Prickett v. Marceline, 65 Fed 469; Dudley v. Lake County, 80 Fed. 677; Electric Co. v. Newton, 42 Fed. 723. It will be noted in connection with a review of the above cases that neither our Constitution nor our statute prohibits voting or authorizing bonds in excess of constitutional limitation; they merely prohibit their issue, the words used being “nor shall any indebtedness be allowed to be incurred.” (3) The vote of the electors did not create an existing indebtedness. The debt is not incurred until the bonds are issued. Electric Co. v. Newton, 42 Fed. 723.

      John T. Barker, Attorney-General, and Ernest A. Green, Assistant Attorney-General, for respondent.
    (1) An assessment cannot be considered as complete until it has passed the- State Board of Equalization. Therefore, the assessment based on ownership as of June 1, 1911, not being equalized, at the time the bond issues were voted, August 5, 1912, was not an assessment within the meaning of the Constitution. Sees. 12 and 12a, art. 10, Constitution; Sec. 9544, R. S. 1909; See. 11411, R. S. 1909; Prickett v. Marceline, 65 Fed. 469; Lake County v. Standley, 24 Colo. 1; McLean v. Valley County, 74 Fed. 389. (2) The limit of indebtedness under sections 12 and 12a of article 10 of the Constitution is determined by the assessment next before the last at the time the bonds are voted by the people, and not at the time the bonds are actually issued. Therefore, both bond issues are invalid in this case, and the bonds are not entitled to registration. Secs. 12 -and 12a, art. 10, Constitution; Sec. 9544, R. S. 1909; Prickett v. Marceline, 65 Fed. 474; State v. Babcock, 24 Neb. 640; Railroad v. Wilber, 63 Neb. 627; Evans v. McFarland, 186 Mo. 726.
   WALKER, J.

This is a proceeding by mandamus instituted by the relator, a city of the fourth class,, against the respondent, the State Auditor, to compel the latter to register certain bonds.

The respondent refused to register the bonds, and relator applied for and was granted an alternative writ of mandamus in this court, to which the respondent made return, alleging among other things that said bonds were illegally issued, a more detailed statement of said return being hereinafter set out.

The facts as disclosed by the petition are as follows : ,

On the 16th day of July, 1912, said city enacted an ordinance directing a special election to be held on the 5th day of August, 1912, for the purpose of voting on two propositions: (1) to issue $25,000 in bonds to provide funds to construct a public sewer system; (2) to issue $28,000 in bonds to provide funds to construct a system of waterworks; said election was held at the time appointed; the two propositions were voted on separately, and more than two-thirds of the votes cast on each were in favor of same; the returns of said election were canvassed and the result was properly declared; on the 7th day of October, 1912, the board of aldermen, by an ordinance duly enacted, authorized the issuance of said bonds; ordinances were also enacted providing for the levy of taxes to pay the principal and interest on said bond issues.

The assessed valuation of the taxable property within said city, based on the ownership as of June 1, 1909, amounted to $483,466; the assessed valuation of the taxable property therein based on' the ownership as of June 1, 1910, amounted to $557,786. Said bonds were presented to the Auditor for registration on the 7th day of October, 1912. In determining the per centum which the total amount of said bonds bore to the taxable property of said city, the board of aider-men was governed by the assessed valuation based on the taxable ownership of property therein as of June 1, 1910.

On the day of the special election for voting upon the issuance of said bonds, to-wit, the 5th day of August, 1912, the State Board of Equalization was still in session performing the duties prescribed by section 11411, Revised Statutes 1909, that is, the equalization of the values of real and personal property among the several counties of the State, as for June 1, 1911, for the purpose of taxation, and said- State board did not complete its duties until the 1st day of September, 1912. It is admitted that the requirements of the law in regard to the presentation of said bonds to the Auditor for registration, and the tendering of the proper fee for same have been complied with.

Respondent’s return to the alternative writ of mandamus issued herein was to this effect: (1) that said writ did not set forth facts sufficient to entitle relator to relief; (2) that it appeared on the face of said writ that on the date of the election therein referred to, the State Board of Equalization was in session engaged in the performance of its statutory duties of equalizing the valuation of real and personal property among the several counties of the State, and had. not at that time equalized the assessment based on the ownership of said property as of June 1, 1911; that under the Constitution of this State, sections 12 and 12a of article 10, relator could not become indebted to an amount exceeding ten per centum of the valuation of its taxable property based on the ownership of same as of July 1, 1909, on which date the assessed value of the taxable property of relator amounted to $488,466; that the total amount of the indebtedness of said relator, including the aggregate amount of said bonds presented for registration, was $54,500.

The only question for consideration is whether the total valuation of the property of said city has been based on the proper year in determining whether the per centum which said bonds bear to same is within the limits of the Constitution.

A review of the provisions of the State Constitution relative to the matter under consideration is necessary to determine whether the peremptory writ should be issued or the proceeding dismissed.

Sections 12 and 12a of article 10 of the Constitution prohibit any subdivision of the State, therein named, from incurring any indebtedness in any year in excess of the income and * revenue for such year, unless at least two-thirds of the voters of such subdivision assent to such indebtedness, which in no event can exceed ten per centum of the total assessed value of the taxable property. of such subdivision at the assessment of same next before the last assessment made by the State Board of Equalization, previous to the incurring of such indebtedness. That these sections are mandatory is evident from the purpose of their adoption, which was to definitely limit the power to incur indebtedness and to base same on an assessment sufficiently remote that the advantages, real or speculative, derived from the incurring of such indebtedness, may in no way influence the assessment of the property of such subdivision. Being mandatory these sections should be strictly construed, and each step required to be taken literally followed. In 2 Lewis’s Sutherland on Statutory Construction (2 Ed.), sec. 627, p. 1135, the rule deduced from many cases is that, to render a mandatory law available its directions should be strictly complied with. Unless this is done, the proceedings thereunder are void. This rule is applicable to constitutions as well as statutes. A deviation therefrom would tend to defeat the purpose of the framers of the Constitution. Selfish interests prompted by a desire to increase indebtedness might, if a next previous assessment were taken as a basis, put influences at work to so increase the assessment as to accomplish their purpose. [State ex rel. v. Cornwell, 40 S. C. 26.] This is impossible if the constitutional mandate is obeyed. The Constitution, in this regard, is a prohibition, and, therefore, self-enforcing, as has been declared by this court in Hannibal & St. Joseph Railroad v. Board of Equalization, 64 Mo. 294, and State ex rel. v. Van Every, 75 Mo. 530.

To summarize, it follows that to create a valid indebtedness certain prerequisites are necessary: First, the constituted authority of the subdivision of the State must ascertain the total value of the taxable property of same at the assessment next before the assessment previous to the incurring of the indebtedness; and, second, if it be found that such indebtedness will not exceed ten per centum of the assessed valuation of the property of such subdivision, based on the assessment required to be taken to determine such per centum, then a proposition must be submitted to the voters to enable them to approve or reject such proposition; if approved by the required majority, bonds may be issued which before negotiation are to be registered by the State Auditor.

The “assessments” designated in the Constitution as necessary to be considered in determining the per centum of indebtedness, mean the ^wo successive, antecedent, completed assessments made by the State Board of Equalization previous to the incurring of the indebtedness. [Culbertson v. Fulton, 127 Ill. 30, 1. c. 37; Wilkinson v. Van Orman, 70 Iowa, 230; Prickett v. Marceline, 65 Fed. 469; Railroad v. Wilber, 63 Neb. 1. c. 627.] This must be true, for until the State Board of Equalization has completed its labors the total amount of taxable property in any subdivision cannot be determined. The authorities ’ cited afford ample support for the correctness of this conclusion. If space permitted, the unanswerable arguments in this behalf of Philips, J., in Prickett v. Marceline, supra, afterwards affirmed by the United States Circuit Court of Appeals, might be appropriately quoted.

On completed assessments, therefore, the constituted authority of any subdivision mnst base its action in determining the per centum of indebtedness. By way of illustration, it if was proposed to authorize the incurring of an indebtedness in 1912, and the assessment as of June 1, 1911, had not been completed, the taking of the assessment as of June 1, 1910, as the basis, would not be in compliance with the Constitution, for the reason that the assessment required to be taken is that of June 1, 1909.

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.

The foregoing general deductions are applicable under the facts in the case at bar. Relator, the city of Dexter, is one of the subdivisions named in the Constitution; the board of aldermen of said city is' the; constituted authority under the statute (Secs. 9355, 9544, R. S. ’ 1909) to initiate a proceeding for the incurring of an indebtedness and to issue bonds, upon being legally authorized so , , . To . to do, m payment of same. Acting under this power, said board adopted an ordinance directing the holding of a special election- for the purpose of enabling the voters to approve or reject a proposition for the issuance of bonds aggregating the sum of $53,000. The board in ascertaining whether the proposed indebtedness was within the constitutional limit took the assessment as of June 1, 1910, at which time the assessment of June 1, 1911, was not completed. On this basis the proposition was submitted to the voters, who approved same by the required majority and the bonds were issued, and submitted to the Auditor for registration. . The action of the board in taking the assessment as of June 1, 1910, was unauthorized, and the assessment as of June 1, 1909, should have been taken as the basis because it was “the assessment next before the last assessment previous to the incurring of the indebtedness;” but the assessed value of the property of said city as of June 1, 1909, was $485,466, and the indebtedness sought to be incurred was $53,000, or more than-ten per cent of said assessment.

The action of the board not being in compliance with the Constitution, and the proposed indebtedness being in excess of the prescribed limit, the bonds are void. The statute (Sec. 1275, R. S. 1909) doeg not caU for cial functions on the part of the State Auditor. He is an executive officer. But every executive officer when called upon to act officially must inquire into and determine whether on the facts the law requires him to do one thing or another. [Hoff v. County, 110 U. S. 53.] The Auditor has determined in this case, and properly so, that the requirements of the Constitution have not been complied with; the peremptory writ should, therefore, be denied and this proceeding dismissed. It is so ordered.-

Lamm, C. J., Woodson and Brown, JJ., concur; Bond, J., dissents in opinion filed, in which Graves and Baris, JJ., concur.

DISSENTING OPINION.

STATEMENT.

Relator, the city of Dexter, asks for a mandamus to compel State Auditor to register bonds for $25,000 issued by relator on the 2nd of October, 1912, to provide funds to construct a public sewer, and to register bonds for $28,000 issued on the same date by relator to procure funds to construct waterworks. Authority was given to issue such bonds by vote of its inhabitants on the 5th of August, 1912. At the time said vote was taken the State Board of Equalization had not fully completed the task of equalizing the assessments of real and personal property contained in the city of Dexter as for the year 1911, but did complete its work and adjourn on the 1st day of September, 1912, so that this assessment of property was in all respects finished one month before the issue of the two sets of bonds above mentioned. The assessment of the property in said city on September 1, 1912 (for the year 1911), amounting to $562,079 (for the year 1910), the next prior assessment to $557,786, the next prior assessment (for the year 1909), amounted to $486,466. The amount of the assessment (for 1910) was large enough to warrant the issuance of the aforesaid bonds, since the amount of the bonds and all other indebtedness of the relator city was less than ten per cent of the assessment. And the only question presented for our decision, is whether, under the Constitution, the bonds in question were lawfully issued on the 1st of October, 1912, at which date the assessment of the relator’s property as of the years 1911 and 1910 had been completed in all respects. It is conceded by both parties that the constitutional provisions have been complied with in all respects in procuring the assent of the voters in providing for the payment of the bonds and that they should be registered, provided the assessment of 1910 was the legal basis for their issuance.

OPINION.

I.

BOND, J.

(After stating the facts as above).— The constitutional provisions relating to the issuance of the bonds in question are, to-wit:

“Sec. 12. Municipal indebtedness, limit of — how increased — exceptions as to St. Louis and Kansas City — No. . . . city . . . 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 cases requiring such assent shall any indebtedness be allowed to be incurred to an amount including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness: . . . and provided further, that any . . . city . . . incurring any indebtedness requiring the assent of the voters as aforesaid, shall, before or at the time of doing so, provide for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. . . . [Art.-10, sec. 12.]

There is another constitutional amendment (article 10, section 12a) which permits cities of the class of relator to incur a further indebtedness not exceeding* five per cent to purchase, construct and own waterworks, etc., which does not otherwise differ from the foregoing and therefore is not inserted and for the same reason the statutory provision on the subject, Revised Statutes .1909, section 9544, is not copied.

The purpose of the adoption of the above constitutional amendments .providing for the increase of indebtedness to buy waterworks and electric light plants, etc., was considered by this court where it was said, in sustaining a purchase of an old waterworks plant, that this might be rightfully done, although not falling within the letter of the Constitution. The court added in speaking of the language of the Constitution: “ ‘ The construction must not be so strict or technical as to defeat the evident objects and purposes of their creation.’ "We think the amendment to the Constitution Avas designed by the people to enable cities of the population named to provide themselves with water and light and to encourage municipal ownership of the water supply and lighting facilities.” [State ex rel. v. Allen, 183 Mo. 291.]

Again, this court has said, speaking of the constitutional provisions referring to bond issues (Constitution, art. 10, sec. 12), that it approved and adopted the following language of Mr. Story as to the rule of construction, to-wit: “Every word employed in the Constitution is to be expounded in its plain, obvious and common sense meaning, unless the context furnishes some ground to control, qualify or enlarge it.” [1 Story Constitution (5 Ed.), sec. 451; State ex rel. v. Walker, 193 Mo. 1. c. 710.] With this view of the objects of the above constitutional amendments and the method of arriving at their meanings, let us turn to the language of the provision. An inspection of the terms of the first constitutional amendment shows that it was adopted to give the city power by the scheme there stated, to contract debts beyond what could be paid from its yearly income and revenue, upon two conditions: (1) that two-thirds of its voters at a special election should assent to the future creation of the proposed debt; (2) that before such indebtedness should be contracted or created the amount thereof added to all other existing indebtedness, to the city, should not exceed five (now ten) per cent of the taxable property therein, to be estimated on “the assessment next before the last assessment for state and county purposes, previous to the incurring of such indebtedness.” When these two steps are taken and provisions made for the debt and interest before or at ■the time of taking the second step, then the Constitution validates the indebtedness. The meaning of the language which defines these duties is too plain for comment, for it is as directly and simply stated as words can make it. There is not a word, a line, or a sentence, in the provision under review, which puts any other burden upon a city, seeking to achieve the laudable purpose of owning its own sewers and waterworks. Every one of these constitutional requirements was strictly complied with in the present case, for on October 1 and 2, .1912, when the bonds were actually issued, there was in existence a completed assessment for 1911, and the next prior assessment for 1910 was amply sufficient, at the constitutional .ratio of ten per cent, to justify the making of the contract expressed by the bonds.

The only possible doubt which could arise is, as to whether the issuance of the bonds or the vote of authority to issue them, was the incurring °f ^ie indebtedness? This question as to how and when such indebtedness is incurred, has been set at rest by all the cases, which have dealt with it. It was directly adjudged by the Federal court and in a case having the same object (erection of an electric plant) sought to be accomplished by the city of Dexter, the relator herein. It was, claimed there that, under the assessment existing when the vote was taken, the proposed bond issue would exceed the constitutional limit, but it was shown further that, when the bonds were in fact issued, they did not exceed five per cent of the assessed value of the property as prescribed by the Iowa Constitution, for another assessment had been completed before the actual issuance of the bonds. The court held for that reason they were valid, using this language: “The vote of the electors did not create an existing indebtedness. It authorized the city to undertake the erection of an electric plant. The city authorities in carrying on this work, are subject to the constitutional limitation; but no debt was created until the bonds were issued and sold, and at that time the indebtedness was not increased over the limitation by the sale of the bonds.” (Italics mine.) [Thompson Houston Electric Co. v. City of Newton, 42 Fed. 1. c. 728.]

The same doctrine was announced in the Circuit Court of Appeals for the Eighth Circuit. There the court used the following language: “The debt created by the bonds in this case was incurred, not at the time the board of commissioners determined that it was necessary, nor when the qualified voters of the county gave authority to incur it, nor at the date of the bonds (they having been antedated), but at the date, later than September 6, 1880, when the bonds-were in fact issued and sold.” [Dudley v. Board of Commissioners, 80 Fed. l. c. 677.] (Italics mine.) And again, the United States Circuit Court of Appeals (Caldwell, Sanborn and Thayer, Circuit Judges) said: “The assessed valuation in 1879 was properly rejected, because, although the vote for the bonds was cast in the fall of that year, they were not issued until July, 1881, long after the assessment of 1880 had been made; and it was the assessed valuation when the bonds were issued, and not when the Vote for them was cast, that measured the permissible debt.” [Board of Commissioners v. Sutliff, 97 Fed. 1. c. 281.] (Italics mine.) Finally it was said by the same tribunal and the same three circuit judges, speaking on the exact point involved in this proceeding, to-wit: “The defense that the bonds are void because their aggregate amount is in excess of the statutory limitation rests upon the proposition that the limitation is to be measured by the assessed valuation of the property of the county in the year in which the bonds were voted (1886), and not in the year in which they were issued (1888). The position is untenable, and the question it seeks to present is no longer open to discussion in this court. The assessed valuation by which the statutory limitation is to be measured is the last assessed valuation of the property of the county before the bonds are issued, not the last one before they are voted or directed to be issued.” [Corning v. Board of Commissioners, 102 Fed. 1. c. 58.] (Italics mine.)

Equally clear, explicit, and conclusive on this subject is the doctrine stated in the text, 1 Dillon on Municipal Corporations (5 Eel.), p. 403, sec. 207, to-wit: “Where a vote is required, the validity of bonds issued pursuant to such vote is to be determined by the last assessed valuation of the property before the bonds are issued, not the last assessment before they are voted or directed to be issued.”

Again the question was necessarily involved and decided likewise by this court speaking through Lamm, J. The case involved a construction of the exact terms involved in the present case, to-wit, the time of “incurring any indebtedness, ’ ’ for the Constitution speaking of school districts prescribed that, “Any . . . school district . . . incurring any indebtedness requiring the assent of the voters as aforesaid, shall before or at the time of doing so,” make provision by annual taxation to pay the interest and create a sinking fund for the payment of the principal. Said the court: “The Constitution required the school board to provide for the collection of an annual tax for a sinking fund and to pay the interest; it says this must be done at the time of incurring the indebtedness or before that time. Here it was done before the bonds were actually sold and delivered.” Just before deciding this point the learned judge, in stating what was not before him, said we are not called upon to decide what funds could be used “to pay interest on, and creating a sinking fund for, school bonds not sold and, therefore, in no sense an indebtedness of the districts.” [Black v. Early, 208 Mo. 1. c. 312.] (Italics his.) This language taken together necessarily implies by exclusion and inclusion that the indebtedness Avas incurred when the bonds were actually sold and delivered. This decision is correct, controlling and completely in harmony with the law. We have not been able to find in the whole range of the adjudged law a case to the contrary.

I take it, therefore, that as has been shown, the indebtedness for the bonds in question was not incurrable until the issuance and sale. Hence no doubt can exist, that it was the duty of the State Auditor to register them as prescribed by the statute (R. S. 1909, sec. 1275), for they were submitted to him after full compliance with the constitutional requirements applicable thereto.

II.

In speaking of the assessment by which deb'ts or bonds are limited, the provision, as has been shown, proportions the amount “by the assessment next before the last assessment for state and county purposes, previous to the incAirring of such indebtednessThis last phrase refers and can only refer “to the last assessment” for State and county purposes which occurs immediately before it. The slightest glance will disclose this fact. It constitutes the constitutional method of defining and pointing out and making certain the particular assessment upon which the bonds are to be based, by describing it as one next before the last assessment which preceded the incurring of the indebtedness. I cannot conceive how the expression, “previous to the incurring of such indebtedness,” can describe or refer to any other language than that which immediately preceded it and from which it is only separated by a comma. Hence, I am unable to follow the suggestion in the learned principal opinion that this phrase “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.” If this suggestion is feasible, which I cannot conceive, still it could not be practically applied, in my opinion, for I fail to discover any other language in any part of the constitutional amendment, than that to which the phrase is now connected, with which it could be joined in the way above suggested.

I think this phrase is an integral part and qualifier of the language which precedes it. It occurs in the same form and identical connection in the constitutions of sister States, and all the courts which have reviewed it have uniformly held it to particularize that “assessed valuation” which must immediately precede the incurrence of the indebtedness, the only difference between those States and our State being that in them the last “assessed valuation” before the debt is contracted, is also the basis of its validity; while under our Constitution, it is the next to last “assessed valuation” which is the limit of indebtedness. This correct view is also taken by the learned Attorney-G-eneral; for in his brief, page 17, he says: ‘ ‘ The sole question involved in this case, viz., whether the limitation of indebtedness applies as of the date of the election authorizing the issue or as of the date on which the bonds were actually issued. In other words, is the indebtedness incurred within the meaning of these provisions at the time the bonds were voted or at the time they are issued?” As has been been shown the uniform answer of the courts in this State, the Federal tribunals, and elsewhere is that the indebtedness is not incurred, in.cases like the present, until bonds are both issued and sold.

III.

The learned principal opinion, cites thq case of Prickett v. City of Marceline, 65 Fed. 469. In that case the bonds were issued in July 2, 1890, after a vote was taken in June, 1890. The 7 court held, after a review of the law relating to the work of county assessment and that of the State Board of Equalization, that the assessment for the year of 1890 could not be completed before February, 1891, and hence necessarily the assessment to which the bond issue was referable was that of 1888, since that was next to the assessment of 1889, which was the last completed assessment previous to the incurring of the indebtedness, by the issue of the bonds on July 2, 1890. But the court expressly decided that the indebtedness was created on the date of July 2, 1890, when the bonds were issued and from the time the interest was paid. These were the only two points in judgment and each was decided in perfect accord with the authorities heretofore cited. Judge Philips added his personal opinion in the following terms: “So there must be at the time the debt is created, and I think, when his vote is given, two antecedent completed assessments next prior thereto.” It is perfectly plain from this language that Judge Philips ruled correctly as to the law applicable to the points involved, and that he distinguished therefrom his own view by the middle phrase, to-wit: “And I think when his vote is given. ’ If this clause is elided,“ "then the foregoing statement of the law is accurate and correct, as it was intended to be, when made by the learned judge, who carefully expressed his personal -opinion in a form to distinguish it from the established rule, which he had applied in his judgment.'

The learned principal opinion states that this case was affirmed on appeal by the United States Circuit Court of Appeals. This is an inadvertency if it is intended to imply that any part- of the reasoning of the opinion of Judge Philips was reviewed or affirmed. When the judgment was appealed it was found by the appellate court that no. exceptions whatever had been preserved, and that nothing was presented for review. The case was disposed of with a single remark, to-wit:

“PER CURIAM: — This case is affirmed on the authority of Searcy County v. Thompson, 66 Fed. 92.” [Prickett v. Marceline, 69 Fed. 462.] The casé cited, in the per curiam held that where no exceptions were saved there was nothing to review. It is therefore evident that the learned principal opinion is in error if it conveys the idea that the personal views of Judge Philips or any of his reasoning, have ever received the sanction of the United States Circuit Court of Appeals. On the contrary, that court and the'three judges (Caldwell, Sanborn and Thayer) who summarily disposed of the appeal from his judgment, by repeated subsequent opinons, have established the rule to be exactly the reverse of the dicta of Judge Philips. The only case that gives any semblance of support to the principal opinion is Railroad v. Village of Wilber, 63 Neb. 1. c. 627. An analysis of that case shows that it does not in fact support the opinion. It involved the construction of a local statute which permitted the city to create debts not beyond a certain per cent of its taxable property, “according to the last preceding assessment of property.” These quoted terms were not modified or followed by the expression “previous to the incurring of such indebtedness” or similar words. It was, therefore, totally unlike the constitutional provision in this and other states. Hence, no question arose as to the relativity of the last assessment to the. time of the .creation of the debt. And the court was at liberty to hold that the last assessment before the holding of the election was intended. Clearly no such construction would have been possible if the local act had contained words which had described the property assessment, as the one last previous to the making of the debt. The ruling is therefore inapposite and affords no support for the view of the principal opinion.

Two other cases are cited in the principal opinion. [Culbertson v. Fulton, 127 Ill. 30; Wilkinson v. Van Orman, 70 Iowa, 230.] The Illinois case is directly contrary to the. theory for which it is invoked, as will appear from the following excerpt: “The Constitution provides that the value of the taxable property must be ascertained by ‘the last assessment for State and county taxes previous to the incurring of such indebtedness.’ Inasmuch as the indebtedness must be regarded as having been incurred at the date of contract, that is to say, August 15, 1887, we must ascertain the value of the taxable property, for the purposes of this case, from the assessment for State and county taxes for the year 1886, and not for the year 1887. This is so, for the reason that the equalized value of the assessable property in the city of Fulton for the year 1887 was not arrived at by the action of the State Board of Equalization until the first day of October, 1887. It is the assessment as fixed by the State board which must govern, and the State board did not fix such assessments until after August 15, the date of the incurring of the indebtedness.”

It is plain that this decision is directly on the point involved in the present proceedings. It expressly holds that the terms “previous to the incurring of such indebtedness” refers to the “date of the contract” whereby the indebtedness is created, and- that as the “last assessment” had not been completed for two months thereafter, the validity of the indebtedness depended on the last completed assessment (with us the next before the last). That is the sole position I take in the present case. Here on October 1 and 2, 1912, when the indebtedness was incurred, the last assessment, for the year 1911, had been completed on September 1,1912. This necessarily measured the validity of the present bonds by their constitutional ratio to the next prior assessment, or that of 1910; which it is admitted is large enough to justify the issuance of the bonds. This argument could not be more aptly or distinctly sustained than by the Illinois case.

The Iowa case also sustains my view. There the suit was to enjoin an issue of bonds because the assessment had not been equalized before the bonds “were proposed to be issued.” There was a demurrer. The court held it should be overruled, because, under the Constitution of Iowa the right to issue bonds must be ascertained by the last completed assessment. This ruling is in accord with the principle which, I hold, governs the present case. Its application to the facts in this record proves that the assessment of 1910 is one which is called into play, because the undisputed facts are that the assessment of 1911 had been completely equalized and was in existence one month prior to the issuance of the bonds in question.

The only- other case cited in the learned principal opinion is State ex rel. v. Cornwell, 40 S. C. 26. That case is also in accord with the consensus of opinions herein cited; it merely reiterates the rule -that it is only completed assessments at the time the debt is. created which can be looked to in measuring its amount. ■The court disposes adversely of the whole basis of the contention of the principal opinion by these words: “For it is admitted in the argument, and properly admitted, that the time when the debt purports to have been, contracted, is the time to which reference must be had in ascertaining whether the constitutional limit had been exceeded.” [Ibid, 1. c. 27.] (Italics mine.)

It seems to me too plain for further argument that neither reason nor authority will permit any other view to be taken of our constitutional provisions limiting the extent to which public corporations may become indebted (which are in substance mere replicas of those of sister states) than, that the “incurring of the indebtedness,” in the sense of the law, takes place at the date when the contract is executed (in case of bonds the date of their issuance and sale). That the validity of the indebtedness depends, with us, upon the fact that it and all other indebtedness, is within ten per cent of the taxable property of the corporation, as shown by the assessment next before the last assessment which is previous to the time of the making of the contract, or of the issuance and sale of the bonds if the indebtedness is incurred in that form. That the obvious, natural, and common sense rule of interpretation prescribed by Mr. Story and uniformly practiced by all the courts, as well as the language of the Constitution, will not permit any other interpretation.

IV.

In the case at bar the bonds were issued within thirty days after the assessment of 1911 had been finished, whereby the preceding assessment of 1910 had become the measure of the indebtedness evidenced by them. Beyond doubt this was prompt and seasonable action-on the part of the city of Dexter, for, in many of the cases cited, the bonds authorized were not issued for more than a year after the assessment on which they were based had been’completed. The law is, that constitutional or other legal rights, where no time is mentioned, must be exercised in a reasonable time and manner. Hence, in this case unreasonable delay in the issue of the bonds, or changed circumstances, might entitled any taxpaying citizen to enjoin any further action on the part of the city. It is significant that no such attempt has been made. I know of no rule of law which would justify this court in deciding that these bonds should be denied regisi ration because they were not issued until thirty days after the right to do so had accrued. [State ex rel. v. Gordon, 217 Mo. 1. c. 122.]

I think the respondent should be commanded to register these bonds and the writ should go as prayed.

Graves and Faris, JJ., concur in this opinion.