City of Sedalia v. Chalfant

TRIEBER, District Judge

(after stating the facts as above). The stipulations, so far as they relate to the $13,000 bond issue, read:

' “It is further stipulated, agreed, and admitted by the parties that, if the indebtedness incurred and the income and revenue provided for the various years should be computed upon the basis of a fiscal year beginning on July 1st and, ending on June 30th, and if the court should hold that the bonded indebtedness of defendant city was incurred within the meaning of section 12 of article 10 of the Missouri Constitution on the day of the passage or approval of the ordinance authorizing the issue of such bonds, then said city had become indebted, including the $13,000 bond issue, on May 2 and 3, 1893, in the said fiscal year, in excess of the income and revenue provided for such year. * * *

“It is further admitted that, if the indebtedness incurred and the income and revenue provided for the various years should be computed on the basis of a calendar year, and if such bonded indebtedness was incurred within the meaning of section 12 of article 10 of the Constitution of Missouri on the day of the passage or approval of the ordinance authorizing the issue of the$13,000’ bonds, then on May 2 and 3, 1893, the said city had not become indebted, including the said $13,000 bond issue, in the calendar year, in excess of the income and revenue provided for such calendar year, provided all of the license taxes collected in the entire calendar year of 1893 should be counted in. computing the income and revenue provided for such calendar year.

“It is admitted that, if the indebtedness incurred and the revenue and income provided for the various years should be computed upon the basis of a calendar year, and if such bonded indebtedness was incurred within the meaning of section 12 of article 10 of the. Missouri Constitution on the day of the passage or approval of the ordinance authorizing the issue of said $13,000 bond issue, and if, in computing the income and revenue provided for such calendar year, no license taxes t collected by such city after May 3, 1893, should be taken into consideration, then on May 2 and 3, 1893, the. said city had become indebted, including the said $13,000 bond issue, in the calendar year, in excess of the income and revenue provided for such year.”

This raises two questions to- be decided:

.• First. Should the indebtedness, income, and revenue of the city be computed upon the fiscal year, beginning July 1st and ending June 30th of the succeeding year, or upon the calendar year?

Second. If the indebtedness and the income and revenue should be computed upon the calendar year of 1893, shall licenses, to be collected during that calendar year under ordinances then in force, be included in computing the “income and revenue” of the city for that calendar year?

The learned trial judge held that the word “year,” in section 12 of article 10 of the Constitution of the state, means “calendar year,” and the words “income and revenue” included as sources of income and revenue funds collected from licenses under ordinances of the city in force at the time and collectible during that calendar year.'

I

We concur in the conclusion reached by the learned trial judge that the word “year,” in section 12 of article 10 of the Constitution, of the state of Missouri, means “calendar year.”, The Supreme Court of that state, in Trask v. Livingston County, 210 Mo. 582, 109 S. W. 656, 37 L. R. A. (N. S.) 1045, so construed it. In that case an appropriation for the' construction of a bridge had been made by the county court in September, 1889, but the warrants to pay for it were drawn in May, 1890; therefore, if counsel’s contention is correct, the appropriation was made and the warrants drawn in the samé fiscal year of 1889. But the court held that, as the appropriation was made in September, 1889, the validity of the warrants must be determined by the income and revenue of the county for the calendar year 1889, and, as the income and revenue for that year were sufficient, to pay the appropriation, the warrants were valid, although the warrants in controversy and others drawn in the fiscal year of 1889 exceeded the revenue and income of the county for that fiscal year. This construction of the Constitution by the, highest court of the state is conclusive in the national courts, and it is therefore unnecessary for us to express an independent opinion on the question.

II.

Whether collections from license taxes by a county or city are income and revenue within the meaning of. this section of the Constitution has also been decided by the Supreme Court of that state. Lamar Water Co. v. City of Lamar, 128 Mo. 188, 223, 26 S. W. 1025, 31 S. W. 756, 32 L. R. A. 157, reaffirmed in Water Co. v. Carterville, 142 Mo. 101, 116, 43 S. W. 625. Counsel for the eity rely on Rice v. Milwaukee, 100 Wis. 516, 76 N. W. 341, and Overall v. City of Madisonville, 125 Ky. 684, 102 S. W. 278, 12 L. R. A. (N. S.) 433. The Wisconsin case has no application to the instant case. The provision of the Constitution of that state (Const, art. 11, § 3), construed in Rice v. Milwaukee, supra, prohibits the creation of debts by a eity in excess of 5 per cent of the “taxable value of the property therein, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness.” This provision is similar to that in section 12 of article 10, of a eity or county desires to increase the indebtedness in excess of the income and revenue for the year, and therefore is not involved in this action.

The Kentucky case apparently sustains the contention of counsel for the city, but this court is hound by the decision of the Supreme Court of Missouri, which held otherwise.

Another question, neither pleaded nor excepted to at the trial, is that there was an excess of interest allowed. It is for the first time raised in this court. This is not permissible. Besides, in view of the fact that by the judgment of the court, the defendant escaped payment of $9,000 and interest, on its bonds, the money for which it had received and used for its benefit, we do not feel inclined to notice alleged errors, assuming that it was error, which we do not decide, neither raised, objected to, nor excepted in the court below, and raised for the first time in this court.

The judgment is affirmed.