Weber v. City of Helena ( 1931 )

The Act in question is entitled: "An Act legalizing and validating all elections heretofore held in any city of this state authorizing the creation or increase of the indebtedness of such city, within 3% of the value of the taxable property of such city, for any of the purposes set forth in subdivision 64, section 5039, R.C.M. 1921, as amended, which elections were held after notice given as provided in section 5279, R.C.M. 1921, and at which the proposal to increase said indebtedness received a majority of all votes tendered and of all votes cast at such election."

It is not until we reach the body of the Act that we find special provision for validating the bonds. The body of the Act, after attempting to validate the election, provides: "and all such bonds whether issued or hereafter to be issued are legalized and declared to be valid and legal obligations of and against the city issuing the same."

The legal effect of the Act, so far as the contemplated Helena water bonds are concerned, is to compel their issuance. There is no discretion left in the city council if the election is valid. Action on the part of the council looking to the issuance and sale of the bonds is compulsory. Under section 5280, Revised Codes 1921, the city council must give notice for the sale of the bonds and because of section 5281 the proper officers must sign them. The Act deprives the city and its people of the right of local self-government which has heretofore long endured. (HelenaConsolidated Water Co. v. Steele, 20 Mont. 1, 37 L.R.A. 412, 49 P. 382.)

Validating statutes operate only on conditions already existing and can have no prospective operation. (25 R.C.L. 823; 23 Cal. Jur. 611; Snidow v. Montana Home for the Aged,88 Mont. 337, 292 P. 722.) But so far as the instant case is concerned the bonds have not been issued or sold. The statute attempts to validate something not yet in being. Its operative effect here is to create, not to cure. It will compel future action and not validate past transactions. It creates an indebtedness on the part of the city in the sum of $200,000 not now existing. This is also the effect of the Act if it is to be considered only from the standpoint of validating the election. Without the Act there was no election, as we have held. If the Act is upheld it instills life into that which is otherwise dead. It creates an election where none existed before. It provides the foundation for an indebtedness otherwise nonexisting.

In speaking of a validating statute, in Cooper v. City ofBozeman, 54 Mont. 277, 169 P. 801, this court, through Mr. Justice Sanner, said: "Finally, respondent invokes the provisions of section 9, Chapter 142, Laws of 1915, as curative of all the defects pointed out in the complaint. For present purposes it may be assumed that these provisions are ample to cure all mere irregularities, and that they cover with their protecting mantle all such failures as are here recorded when they occur after proceedings sufficient to confer jurisdiction; yet, certain it is that the legislature cannot breathe the breath of life into a dead thing." This is the rule elsewhere.

Thus, the supreme court of Indiana, in Seitz v. Mosier,192 Ind. 416, 136 N.E. 840, after quoting the language from Cooley on Constitutional Limitations quoted in the majority opinion in this case, said: "But while the legislature has power to cure irregularities and defects which do not go to the essence of a proceeding, it is a general principle that when an act, proceeding or transaction is void for lack of power to do it, and not merely voidable on account of some formal defect, it cannot be cured by legislative action. (Sedgwick, Statutory Construction, 2d ed., 143, note; Strosser v. City of FortWayne (1885), 100 Ind. 443, 445.) It follows that, since there was no statute authorizing an election to be held in 1915, and the action of the citizens or some of them in going through the form of voting for trustees of the town of Clarksville at that time was wholly unauthorized by law, the supposed election was void for want of statutory power, and not merely irregular, and it could not be legalized by a statute afterward enacted."

In Herring v. Lee, 22 W. Va. 661, the court said: "If it was competent for the legislature to make a void proceeding or act valid, then said act might be invoked to sustain the deed in this case. But upon that question there cannot be a moment's hesitation. The legislature can no more impart binding efficacy to a void act than it can take one man's property and give it to another. Indeed to do one is to accomplish the other. What difference can it make whether the act directly or indirectly takes the property of one and transfers it to another? To made a void act valid and thus effect the transfer is the same thing as making the transfer directly."

In Booth v. Hairston, 195 N.C. 8, 141 S.E. 480, the court in speaking of this subject, said: "But the power to cure a crippled instrument, having at least a spark of legal life, does not extend to raising a legal corpse from the dead."

In Simpson v. Teftler, 176 Ark. 1093, 5 S.W.2d 350, the supreme court of Arkansas, after declaring a certain election null and void, said: "And the law of 1927 declaring elections in no fence laws valid could not affect this election if it were void." To the same general effect are: People ex rel.Kjellquist v. Chicago, Mil. St. P. Ry. Co., 321 Ill. 499,152 N.E. 560; Maulding v. Skillet Fork River Outlet U.Drainage District, 313 Ill. 216, 145 N.E. 227.

But assuming that the legislature has authority to validate whatever proceedings it might have authorized originally, I still think this Act must fall so far as the instant case is concerned. Section 26 of Article V of our state Constitution commands that the legislative assembly shall not pass local or special laws in certain enumerated cases, and that "in all other cases where a general law can be made applicable, no special law shall be enacted." The purpose of this requirement was to prohibit the enactment of a law affecting a particular locality which the legislative assembly was unwilling to give general application. Let it be assumed that House Bill 221 is a general law in the sense that it affects all communities coming within its terms. It is worthy of note, however, that the supreme court of Nebraska, in Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773, went beyond the letter of a similar Act, and held that it was "for a special location and to inject life into bonds issued heretofore under proceedings declared void," and hence in violation of a constitutional provision identical with ours.

But assuming, as I have stated before, that it is a general law applicable to other cities besides Helena, still I think it attempts to cure that which the legislature could not have originally authorized, in this: The legislature could not originally have authorized Helena and some other cities to issue bonds by holding an election under sections 5009, 5278 and 5279, while requiring all other cities to hold an election as provided in Chapter 98, Laws of 1923, as amended by Chapter 47, Laws of 1929. Such legislation would be condemned as class legislation. It would be as if the legislature by Chapter 98, Laws of 1923, had provided an exception in the case of Helena and such other cities as are now to be affected by the validating Act. The same infirmity that would have attached to Chapter 98, had it excepted Helena and some other cities from its requirements, must attach to the validating statute.

But as I view House Bill 221, in so far as it has application to the case before us, where the bonds have not been issued, it has no other effect than to compel Helena, and possibly other cities if any are similarly situated, to issue bonds without an election, as provided by law, whereas all other cities must submit the question to the taxpayers affected, as the law requires. I agree with the city's contention that since the indebtedness of the city will not exceed the constitutional limitation, it was competent for the legislature to authorize the issuance of the bonds by the city without any election. But to do so it must pass a general law and not one limited to only certain localities. The Act, in my opinion, is special and local and therefore prohibited by our Constitution, for clearly, if the legislature desired to empower or compel cities to issue bonds without an election or by conducting one as provided in sections 5009, 5278 and 5279, a general law could have been made applicable as was done when those sections were originally enacted.

So far as applicable to the instant case, House Bill 221 is not within the proper exercise of legislative power for another reason. A final judgment has been entered declaring the pretended election a nullity. The fundamental basis of our government is that the three great powers of government — the executive, the legislative and the judicial — shall be preserved as distinct from and independent of each other. (Sec. 1, Article IV, Const.) When final judgment was entered in this case, it fixed the rights of the parties and the fruits of that judgment became property rights. In Gilman v. Tucker,128 N.Y. 190, 26 Am. St. Rep. 464, 13 L.R.A. 304, 28 N.E. 1040, it was said: "A judgment has here been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court, and were thereby placed beyond the reach of legislative power to affect."

Mr. Justice Brewer, speaking for the United States supreme court in McCullough v. Virginia, 172 U.S. 102, 43 L. Ed. 382,19 Sup. Ct. Rep. 134, said: "It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases."

The general rule is that the legislature cannot validate proceedings declared void by final judgment of a court of competent jurisdiction. The cases supporting this rule are collected in an exhaustive note to the case of People v.Owen, 286 Ill. 638, 122 N.E. 132, appearing in 3 A.L.R. 447.

The opposite conclusion was reached by the supreme court of South Dakota, in Hodges v. Snyder, 45 S.D. 149, 25 A.L.R. 1128, 186 N.W. 867. In that case we again find an extensive note beginning on page 1136 of 25 A.L.R., in which the author states that a majority of the cases hold that the legislature has the power to enact a curative statute affecting rights merged in a final judgment. But examination of the cases there cited as sustaining the majority view will disclose that most of them turn upon the proposition that in the particular case a public right or interest was involved over which the legislature had plenary power. (See Wilcox v. Miner, 201 Iowa, 476, 205 N.W. 847.) The South Dakota case of Hodges v. Snyder, was taken to the United States supreme court and as reported in 261 U.S. 600, 67 L. Ed. 819, 43 Sup. Ct. Rep. 435, illustrates this principle.

Here it is true that the rights of the people of Helena are involved as well as those of plaintiff. But the legislature, unlike the power possessed by that of South Dakota concerning school districts, has no authority to directly impose an obligation upon the citizens of Helena. It cannot impose a debt or liability upon the people of the whole state when in excess of $100,000 without their consent expressed at a valid election. (Sec. 2, Art. XIII, Const.) Under our system of government that question is one of local concern to be solved by the people affected, either directly or through their constituted officers. It cannot be compelled by legislative action. Hence, since the rights of the parties have been fixed by final judgment, and since the question of whether a city shall create an indebtedness is not within the legitimate sphere of legislative action, this case does not fall within the reasoning of the cases cited in the note in 25 A.L.R. 1136, as supporting the majority rule. And in none of those cases did the validating statute have the effect, as the one before us, of creating an indebtedness or obligation where none existed before its enactment. In all of them there was at least a moral obligation already existing.

The legislative Act here is simply a declaration on the part of the legislature that the court's decision in holding the election a nullity is erroneous. The court held the election a nullity. The legislature says it is good and valid.

What was said by the supreme court of Oklahoma in McLain v.Oklahoma Cotton Growers' Assn., 125 Okla. 264, 258 P. 269, fits this case. It said: "If this be not the correct rule then it would follow that the validating provisions of the amendatory Act here involved would, in effect, be a legislative direction to the judiciary to change its interpretation of the law in the given case, a proposition that in its application would be subversive of the fundamentals upon which the superstructure of popular government has thus long endured, to which no one under our plan of social order would subscribe."

Accordingly I am not able to concur in the views of my associates. I think the motion to dissolve the injunction should be denied.