Weber v. City of Helena

OPINION ON MOTION TO DISSOLVE INJUNCTION. (Motion submitted March 2, 1931. Decided March 19, 1931.) [297 P. 464.] The legislature had the power to cure and validate the proceeding involved herein. (Cooley on Constitutional Limitations, 8th ed., p. 772; 6 McQuillin on Municipal Corporations, 2d ed., secs. 2041, 2469; 12 C.J. 1094; 44 C.J. 1229; Rogers v. City of Keokuk, 154 U.S. 546, 18 L.Ed. 74,14 Sup. Ct. Rep. 1162; Town of Thompson v. Perrine,103 U.S. 806, 26 L.Ed. 612; State v. Brown, 97 Minn. 402, 5 L.R.A. (n.s.) 327, 106 N.W. 477; State v. Dickerman, 16 Mont. 278,40 P. 698; State ex rel. Lockwood v. Tyler, 64 Mont. 124,208 P. 1081; Scilley v. Red Lodge-Rosebud Irr. Dist.,83 Mont. 282, 272 P. 543; Lucas v. Barringer, 120 S.C. 68,112 S.E. 746; Storm v. Town of Wrightsville, 189 N.C. 679,128 S.E. 17; Browder v. Gunter, 220 Ala. 407, 125 So. 646;City of Kinston v. Security Trust Co., 169 N.C. 207,85 S.E. 399; People v. Peltier, 275 Ill. 217, 113 N.E. 856; Cole v.City of Los Angeles, 180 Cal. 617, 182 P. 436; Clark v.City of Los Angeles, 160 Cal. 30, 116 P. 722; City ofVenice v. Lawrence, 24 Cal.App. 350, 141 P. 406; Marr v.Southern California Gas Co., 198 Cal. 278, 245 P. 178;Jonesboro v. Cairo etc. R. Co., 110 U.S. 192, 28 L.Ed. 116,4 Sup. Ct. Rep. 67; Otoe County v. Baldwin, 111 U.S. 1,28 L.Ed. 331, 4 Sup. Ct. Rep. 265.)

The fact that this court held the proceedings invalid does not deprive the legislature of the rights to pass a curative Act. (Utter v. Franklin, 172 U.S. 416, 43 L.Ed. 498, 501,19 Sup. Ct. Rep. 183; Steele County v. Erskine, 98 Fed. 215, 39 C.C.A. 173; State ex rel. Lockwood v. Tyler, 64 Mont. 124,208 P. 1081; In re Pomeroy, 51 Mont. 119, 151 P. 333.)

The Act is not special legislation. (City of Redlands v.Brook, 151 Cal. 474, 91 P. 150; Kennedy v. Meyer, 259 Pa. St. 306, 103 A. 44; State v. Brown, 97 Minn. 402, 5 L.R.A. (n.s.) 327, 106 N.W. 477; State v. Spaude, 37 Minn. 322,34 N.W. 164.)

The fact that the supreme court said there had been "no election" is immaterial — a void proceeding may be validated. (Jonesboro v. Cairo etc. R. Co., supra; Chase v. Trout,146 Cal. 350, 80 P. 81; Spear v. City of Bremerton,95 Wn. 264, 163 P. 741; Read v. City of Plattsmouth,107 U.S. 568, 27 L.Ed. 414, 2 Sup. Ct. Rep. 208; Gray on Limitations of Taxing Power Public Indebtedness, p. 126; State v. SchoolDistrict No. 1, 15 Mont. 133, 38 P. 462; Johnson v. Countyof Wells, 107 Ind. 15, 8 N.E. 1.)

Taxpayer's suit binds all taxpayers. While the matter is not one in issue at this hearing, the question has been asked whether other taxpayers are bound by the decision, and whether they ought to have special notice of this hearing. Taxpayers, made parties by one who represents them all, are bound by the decision in an action to restrain issuance of municipal bonds. Following well-established principles of law this was so held in Stallcup v. City of Tacoma, 13 Wn. 141, 52 Am. St. Rep. 25, 42 P. 541. A general discussion of representation of a class of persons by one of that class is found in 47 C.J., pp. 43-53. Consent of those represented is presumed unless they show their disapprobation. (47 C.J. 51, sec. 98.)

There is no jurisdictional defect. In speaking of a certain type of curative action the courts sometimes state that a jurisdictional defect cannot be cured, and a little confusion has arisen by the use of that term. It is properly limited to that class of curative Acts which are designed to validate tax deeds, probate proceedings or other legal proceedings, as distinguished from that class of curative Acts which are designed to validate elections and similar public proceedings which do not affect individuals in their vested property rights. The supreme court of Montana has always recognized this distinction and properly applied the law. (See Lamont v. Vinger, 61 Mont. 530,202 P. 769.) With reference to "jurisdictional" steps in bond proceedings, "jurisdictional" is used synonymously with constitutional. In Chase v. Trout, 146 Cal. 350, 80 P. 81, this very question is discussed at length and very well settled. The distinction between the use of the word "jurisdictional" in a legal sense as it affects the validity of the original proceeding and the use of the word "jurisdictional" as it affects a validating Act is therein discussed. (See, also, Ensign v.Barse, 107 N.Y. 329, 14 N.E. 400, 15 N.E. 401; Cooley on Constitutional Limitations, 8th ed., pp. 791 and 792; Scilley v. Red Lodge-Rosebud Irr. Dist., 83 Mont. 282, 272 P. 543;Johnson v. County of Wells, 107 Ind. 15, 8 N.E. 1.)

The curative Act is not an imposition of taxes without the consent of the municipality. (Baker v. City of Seattle,2 Wn. 576, 27 P. 462, 486; Bolles v. Town of Brimfield,120 U.S. 759, 30 L.Ed. 786, 7 Sup. Ct. Rep. 736; Potter v.Lainhart, 44 Fla. 647, 33 So. 251; Owings v. City ofOlympia, 88 Wn. 289, 152 P. 1019; Nottage v. City ofPortland, 35 Or. 539, 76 Am. St. Rep. 513, 58 P. 883; UnitedStates v. Heinszen Co., 206 U.S. 70, 51 L.Ed. 1098,27 Sup. Ct. Rep. 742.) In its opinion in this case, and by the order and judgment following, this court held that the alleged rump vote of a minority of franchised voters on July 7, 1930, in Helena, was not an election. The court did not say that the proceeding was voidable. The court did say that the proceeding was entirely void. The court did not say that jurisdictional roots attached. It did say that no jurisdictional foundation was ever laid. The court did not say that it was a breathing body which could be revived by legislative Act. The court did say that the proceedings were so much inert debris and in language as plain as possible to use, the court declared to the world that such proceedings were beyond healing or curing, judicially or by the legislative laying on of hands.

If House Bill 221 has the force which defendants claim for it, it is unconstitutional and void. No one doubts the authority of the legislative assembly to pass curative Acts. Such Acts are, by their very nature, intended to act upon past transactions and are therefore wholly retroactive. The theory is, of course, that what the legislature could prospectively authorize it may retrospectively eliminate and omit. Here defendants argue that the legislature could, if it desired, omit the requirement of a taxpayers' election to increase bonded municipal indebtedness altogether, and on that premise it may now disregard any rump election held under such general requirement. We will concede for the minute that this application of the principle is correct. But such reasoning has no effect whatever in this case. The legislature cannot, by its own ipse dixit, deprive citizens and taxpayers of their constitutional rights and privileges. It cannot breathe the breath of life into a dead thing.

The legislature cannot waive constitutional rights or jurisdictional defects. (See Davidson v. Wampler, 29 Mont. 61,74 P. 82; McGillic v. Corby, 37 Mont. 249, 17 L.R.A. (n.s.) 1263, 95 P. 1063; Dolenty v. Broadwater County,45 Mont. 261, 122 P. 919.)

In Shapard v. Missoula, 49 Mont. 269, 141 P. 544, it appeared that the city council had, in improvement district proceedings, failed to adopt a resolution of intention. In a proceeding brought to contest the letting of contracts and issuing of warrants under authority of the council it was claimed that the defect was cured by a statute. This court emphatically repudiated such suggestion.

In the case of Horsky v. McKennan, 53 Mont. 50,162 P. 376, the court found that certain tax deeds were void. It was urged that since action against them was not commenced until more than five years after the statute of limitations prohibited action, the deeds could stand. The court directly held that the statute could not cure void deeds.

In Cooper v. City of Bozeman, 54 Mont. 277, 169 P. 801, the court found that certain contracts for the construction of street improvements were void because let without first giving ten days' notice for bids. A statute passed at the next legislative assembly sought to cure the defects. The court said the statute could not possibly rectify the mistakes of a municipal corporation. (See, also, Billings Bench Water Assn. v. Yellowstone County, 70 Mont. 401, 225 P. 996.)

In Scilley v. Red Lodge-Rosebud Irr. Dist., 83 Mont. 282,272 P. 543, this court was asked to say that a curative legislative enactment prohibited a land owner whose lands were included in an irrigation district against his opposition from complaining after the district had been organized, bonds issued and sold, etc. The court directly held that the land owner could not be foreclosed by any legislative enactment. (See, also,Shea v. North-Butte Min. Co., 55 Mont. 522, 179 P. 499;Lamont v. Vinger, 61 Mont. 530, 202 P. 769; State v.Board of County Commrs., 86 Mont. 595, 285 P. 932.)

The legislature cannot deprive the taxpayers of Helena of the right of home rule.

Since this court has explicitly determined that there was no election on the question of increasing municipal indebtedness, it is evident that the defendants rely upon the right of the legislature in the first instance to order the municipal corporation to increase its indebtedness.

It is to be borne in mind that while the municipal corporation proposes to pay off the bonds with revenues from the water plant, nevertheless the proceedings exhibit the fact that a tax may be levied to pay off the bonds, and of course it is obvious that no purchaser for the bonds could be found unless there was a tax provision for his benefit. In other words, no purchaser will take securities whose payment depends upon revenues which may or may not accrue. It is to be borne in mind that this court has held that the fact that the revenues of the water plant are pledged to the payment of the bonds does not prohibit the municipal corporation from resorting to taxation to pay the principal and interest on the bonds. (Carlson v.City of Helena, 39 Mont. 82, 107, 17 Ann. Cas. 1233, 102 P. 39.) Further, the constitutional validity of an Act is to be tested not by what has been done under it, but by what may be done under it (State ex rel. Redman v. Meyers, 65 Mont. 124,210 P. 1064; State v. O'Leary, 43 Mont. 157, 115 P. 204;Chicago etc. Ry. Co. v. Board of Railroad Commrs., 76 Mont. 305,247 P. 162). If there is any doctrine which this court has steadfastly maintained and carried forward under all circumstances and conditions, it is the doctrine that strictly local indebtedness may not be saddled upon the people of a municipal corporation by an Act of the legislative assembly against their will. (Helena Consolidated Water Co. v. Steele,20 Mont. 1, 37 L.R.A. 412, 49 P. 382; State ex rel. Gerry v.Edwards, 42 Mont. 135, Ann. Cas. 1912A, 1063, 32 L.R.A. (n. s) 1078, 111 P. 734.)

Legislative imposition of obligations or burdens upon municipal corporations which must of necessity be lifted or fulfilled by municipal taxation or bonds is the equivalent of the direct imposition of taxes; that which legislatures cannot do directly under the provisions they cannot do indirectly. (HelenaConsolidated Water Co. v. Steele, supra; Darcy v. City ofSan Jose, 104 Cal. 642, 38 P. 500; Cairo St. L.R. Co. v.Sparta, (1875) 77 Ill. 505; People ex rel. McCagg v.Chicago, (1869) 51 Ill. 17, 2 Am. Rep. 278; Lovingston v.Wider, (1870) 53 Ill. 302; Wider v. East St. Louis, 55 Ill. 133;People ex rel. Wider v. Canty, (1870) 55 Ill. 33; EastSt. Louis v. Witts, (1871) 59 Ill. 165; Hinze v. People, (1879) 92 Ill. 406; Morgan v. Schusselle, (1907) 228 Ill. 106,81 N.E. 814; Metropolitan Utilities Dist. v. Omaha, (1924) 112 Neb. 93, 198 N.W. 858; Campbell County v. Newport, (1917) 174 Ky. 712, L.R.A. 1917D, 791, 193 S.W. 1.) All of the above cases are cited in the note of the case of State ex rel.Metropolitan Utilities District v. Omaha, 112 Neb. 694, 46 A.L.R. 602, p. 640, 200 N.W. 871. In a note the author states: "Closely associated with the cases considered under the heading last above are cases holding that an attempt by the legislature to validate a defective municipal obligation incurred for corporate purposes, without the consent of the municipality, is an attempt to impose a burden upon the municipality within the rule above. An Act of the legislature purporting to validate void tax levies is held to be an imposition of taxes by the legislature upon the municipality levying the tax, in violation of Illinois Const., art. 9, sections 9 and 10." (Updike v. Wright, (1876) 81 Ill. 49;Cornell v. People, (1883) 107 Ill. 372; Wetherell v.Devine, (1886) 116 Ill. 631, 6 N.E. 24; Hersebach v.Kaskaskia Island Sanitary Levee Dist., (1914) 265 Ill. 388,106 N.E. 942; People ex rel. Stevenson v. Illinois Cent. R.Co., (1923) 310 Ill. 212, 141 N.E. 822; People ex rel. Adams v. Illinois Cent. R. Co., (1924) 311 Ill. 113, 142 N.E. 473.)

House Bill No. 221 is not limited to water systems. It is general in its provisions and applies to all bonds authorized to be issued under subdivision 64 of section 5039 Revised Codes 1921. This section authorizes bonds to be issued or money borrowed for the following purposes: Erection of public buildings, construction of sewers, bridges, waterworks, lighting plants, supplying the city or town with water, and the funding of outstanding warrants and maturing bonds. (See Cooley on Constitutional Limitations, 7th ed., pp. 541, 542, notes 1 and 2; 12 C.J., pp. 1084 and 1094 et seq.; 43 C.J., pp. 271, 292 et seq.) If the Act is invalid because levying taxes for any of these purposes, it is invalid as a whole, because the invalid portion cannot be separated from the valid portion. (Pollock v.Farmers' Loan Trust Co., 157 U.S. 429, 39 L.Ed. 759,15 Sup. Ct. Rep. 673.)

The Act is unconstitutional and invalid by reason of being special legislation. (Sec. 26, Art. V, Const.; State ex rel.Sackett v. Thomas, 25 Mont. 226, 240, 64 P. 503.) This is a motion to dissolve the injunction issued upon our order in this cause, pursuant to the opinion handed down on January 27 of this year.

Thereafter the legislature, then being in session, passed, and the governor approved, House Bill No. 221 (Chap. 51, Laws of 1931), which is a general law providing: "That any election heretofore held for the purpose of authorizing any city of the State of Montana to create or increase the indebtedness of such city, not exceeding three per centum (3%) of the value of the taxable property of such city, by issuing bonds for any of the purposes set forth in subdivision 64 of section 5039, R.C.M. 1921, as amended, which election was held after notice stating the time and place of holding the election, the amount and character of the bonds proposed to be issued and the purpose thereof, was published and posted for the time and in the manner required by section 5279, R.C.M. 1921, and at which election the proposal to increase said indebtedness and to issue such bonds received a majority of all votes tendered and of the votes cast at such election upon such proposition, be, and the same is hereby legalized, ratified, confirmed and declared valid to all intents and purposes, 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 regardless of any error, defect, omission, irregularity or departure from statute in the holding or conduct of such election, or registration therefor, or in any of the steps or proceedings relating thereto."

The question for determination is whether the legislature had the power to enact the law and, if so, whether it validated the election.

In considering the force of the Act we bear in mind the[1-4] familiar rule that every statute enacted by the legislature is presumed to be the result of the exercise of its constitutional right to enact it, and every reasonable doubt must be resolved in favor of legislative action. (State ex rel. Diederichs v.State Highway Commission, 89 Mont. 205, 296 P. 1033; Stateex rel. Public Service Commission v. Brannon, 86 Mont. 200, 67 A.L.R. 1020, 283 P. 202; State ex rel. Stephens v. Keaster,82 Mont. 126, 266 P. 387.)

"The control of remedies, exercised by the enactment of laws to cure defects in previous statutes, or to supply former omissions and legalize past acts, is one of the most essential of legislative powers." (Wade on Retroactive Law, sec. 250; Snidow v. Montana Home for the Aged, 88 Mont. 337, 292 P. 722;Scilley v. Red Lodge-Rosebud Irr. Dist., 83 Mont. 282,272 P. 543.)

In the absence of special constitutional restrictions the competency of the legislature to enact retrospective statutes to validate an irregular or defective execution of a power by municipal corporations is undoubted. (Dillon on Municipal Corporations, 5th ed., sec. 948.)

The rule applicable to cases of this description, phrased by the eminent Judge Cooley, is a legal classic: "If the thing wanting or which failed to be done, and which constituted the defect in the proceedings, is something, the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by subsequent statute." (Cooley's Constitutional Limitations, 8th ed., p. 775. Quoted with approval in Lamont v. Vinger,61 Mont. 530, 202 P. 769; Scilley v. Red Lodge-Rosebud Irr.Dist., supra.)

Confessing the force of the foregoing principles it is argued that the election which is the subject of this inquiry cannot be cured, because it was void, and the fact is cited that in the opinion we said, "there was no election." But we said also that there was an election — the record discloses that the public evinced strong interest in it — and we recited in some detail the methods employed by the city authorities in holding it. Because statutory requirements were disregarded the election was void: there was no legal election, and nothing more than that was meant by anything said in the opinion.

Mr. Gray in his work on the Limitations of the Taxing Power and Public Indebtedness, section 1251 et seq., draws an important distinction between "jurisdictional" defects and "jurisdictional" requirements, which he places in two classes. In the first, any material act which the legislature, in laying down rules of conduct for officers, has made it necessary that they shall do, is a jurisdictional act so far as the officers are concerned, because the legislature has made it obligatory upon them. "Though jurisdictional as to officers, they are not jurisdictional as to the legislature, and the familiar principle that an act which the legislature could have dispensed with at first it can dispense with by a curative Act, operates." The second class of jurisdictional acts are those which are jurisdictional to the legislature itself — those things which must be done because the people in written Constitutions or in inherent restraints upon legislative power have made essential. These the legislature cannot validate.

Upon an examination of the facts and the law applicable thereto, it is seen that the validating Act in question falls within the first class.

The defect in the proceedings leading up to the election which was held in the city of Helena on July 7, 1930, which caused us to declare the election invalid, was that the city council followed the provisions of sections 5009, 5278 and 5279, Revised Codes 1921, rather than the controlling provisions of Chapter 98 of the Laws of 1923, as amended by Chapter 47 of the Laws of 1929. The defects consisted in failing to obtain from the county clerk lists of voters registered under the state law and failing to post such lists for the period required by law. It is not necessary to decide whether the legislature might have dispensed with an election altogether. It is clear that by general law it might have authorized cities to provide all the methods necessary to the holding of elections therein for municipal purposes, as it did in 1897 by enacting the statutes which appear in the Revised Codes of 1921 as sections 5278 and 5279. The legislature could have dispensed with the registration of electors altogether, as it did prior to 1915 (Chap. 122, Sess. Laws 1915, p. 263) or, perhaps, 1911 (State ex rel. Kehoe v.Stromme, 49 Mont. 25, 139 P. 1002).

In State ex rel. Board of Education v. Brown, 97 Minn. 402, 5 L.R.A. (n.s.) 327, 106 N.W. 477, it appeared that the city of Minneapolis submitted to the voters two propositions for the issuance of school bonds, but neither of the propositions received a two-thirds majority of all the legal voters present and voting at the election, as required by the laws of Minnesota. The legislature passed two Acts validating the bonds. The supreme court said: "The whole matter was under the control of the legislature. The bonds could only be issued by its authority and upon the terms by it prescribed. It could impose or waive conditions; it could ratify what it could at the time authorize."

In a South Carolina case where the registration books were not open or closed within the time provided by law, nor was the notice of election published for the length of time required by law, the legislature passed a curative Act validating the election, which the supreme court held authorized the issuance of the bonds in question. (Lucas v. Barringer, 120 S.C. 68,112 S.E. 746.)

In City of Venice v. Lawrence, 24 Cal.App. 350,141 P. 406, a case in which an Act validating city bonds was at issue, Mr. Justice Shaw said: "It has been repeatedly held that the legislature may validate past transactions when it could in advance, without contravening constitutional provisions, have authorized the proceedings taken as a precedent condition to the exercise of municipal power in issuing bonds. In other words, as to all steps which the legislature could, in the first instance, have dispensed with, it may by retroactive statute declare the taking thereof unnecessary. (See 2 Dillon on Municipal Corporations, 5th ed., sec. 948; City of Redlands v. Brook,151 Cal. 474, 91 P. 150.)" To which we add Middleton v. City of St. Augustine, 42 Fla. 287, 89 Am. St. Rep. 227, 29 So. 421; Griffith v. City of Vicksburg, 102 Miss. 1,58 So. 781; Rogers v. City of Keokuk, 154 U.S. 546,18 L.Ed. 74, 14 Sup. Ct. Rep. 1162; McQuillin on Municipal Corporations, 2d ed., sec. 2469.

"Even where there was no authority for the issue of bonds by a municipal corporation, the legislature may subsequently ratify and validate whatever it might constitutionally have authorized in the first instance." (44 C.J. 1230; Utter v. Franklin,172 U.S. 416, 43 L.Ed. 498, 19 Sup. Ct. Rep. 183; Steele County v.Erskine, 98 Fed. 215, 39 C.C.A. 173. Compare State ex rel.Northwestern Nat. Bank v. Dickerman, 16 Mont. 278,40 P. 698; In re Pomeroy, 51 Mont. 119, 151 P. 333; State ex rel.Lockwood v. Tyler, 64 Mont. 124, 208 P. 1081; Spear v.Bremerton, 95 Wn. 264, 163 P. 741.)

"The fact that this court has held the original Pima County bonds invalid does not affect the question. They were invalid because there was no power to issue them. They were made valid by such power being subsequently given, and it makes no possible difference that they had been declared to be void under the power originally given. The judgment in that case was res adjudicata only of the issues then presented, of the facts as they then appeared, and of the legislation then existing." (Utter v.Franklin, supra.)

Steele County v. Erskine, supra, was a case before the circuit court of appeals of the eighth circuit, Circuit Judges Cald-well, Sanborn and Thayer, sitting, in which an opinion by Judge Amidon was adopted. It was argued that a curative Act of the legislature was an infringement upon the judicial power, for the reason that the supreme court of North Dakota (Erskine v.Steele County, 4 N.D. 339, 28 L.R.A. 645, 60 N.W. 1050), had held that the county commissioners of Steele county had no power or authority under the law to enter into the contract described in the opinion. The legislature by general law had passed a curative Act which supplied the want of power. Judge Amidon said: "The act of a municipality, done without authority previously conferred, may be confirmed and legalized by subsequent legislative enactment, when legislation of that character is not prohibited by the Constitution, and when that which was done would have been legal had it been done under legislative sanction previously given. (Grenade County v.Brown (Brogden), 112 U.S. 261, 28 L.Ed. 704,5 Sup. Ct. Rep. 125; Bolles v. Brimfield, 120 U.S. 759, 760, 30 L.Ed. 786,7 Sup. Ct. Rep. 736; Springfield Safe-Deposit Trust Co. v.City of Attica, 85 Fed. 387, 29 C.C.A. 214.) The objection that the Act in question was judicial legislation wholly misconceives the nature of the Act. The legislature did not declare the contract valid which the court had adjudged invalid, but made it valid by imparting to it the legislative sanction which the court had declared was the only element wanting to its validity. The Act did not construe, but completed, the imperfect contract which the county had made. * * * The want of power in a municipal corporation to enter into a contract is usually disclosed for the first time by an adverse decision in the courts, and, if it should be held that such a decision precludes the legislature from curing the defect, retroactive legislation would be defeated in those cases in which it has heretofore been most frequently used, and in which it has its highest justification. Such is not the law."

That the election in question comes within the provisions of the Act is beyond doubt. The facts recited taken in connection with those stated in the original opinion in this case and in connection with the language of the Act, warrant the statement. Nevertheless, House Bill 221 is not a special law within the contemplation of section 26 of Article V of the Constitution. No matter what may have impelled the legislative action, the law is a general one relating to all cities of Montana coming within its terms. (City of Redlands v. Brook, supra; Kennedy v.Meyer, 259 Pa. St. 306, 103 A. 44.)

"It is settled by the decisions of this court cited above and by the courts of other states, that curative statutes or remedial Acts which apply to all places, things or subjects which are affected by the conditions which are to be remedied are not special Acts within the meaning of the constitutional prohibitions. Innumerable Acts of this character appear in the statute books." (State ex rel. Board of Education of the City ofMinneapolis v. Brown, 97 Minn. 402, 5 L.R.A. (n.s.) 327, 106 N.W. 477.)

The ordinances authorizing the election, and the bonds proposed to be issued, pledge the credit of the city and the revenues of the water department for the payment of the bonds. Counsel for plaintiff argues that while the city proposes to pay off the bonds with the revenues from the water plant, yet the proceedings exhibit the fact that a tax may be levied to pay the same. (Carlson v. City of Helena, 39 Mont. 82, 17 Ann. Cas. 1233, 102 P. 39.)

Relying upon decisions of the supreme court of Illinois, mentioned hereafter, counsel for plaintiff argues that because it is possible to levy a tax to pay the bonds, the Act validating the election is equivalent to the direct imposition of taxes, which is prohibited by section 4 of Article XII of the Constitution, which reads: "The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town or municipal purposes, but it may by law invest in the corporate authorities thereof powers to assess and collect taxes for such purposes." The words "corporate authorities" as used in this section mean those municipal officers who are either directly elected by the inhabitants of the municipalities or are appointed in some mode to which they have given their consent. (State ex rel. Gerry v.Edwards, 42 Mont. 135, Ann. Cas. 1912A, 1063, 32 L.R.A. (n.s.) 1078, 111 P. 734.)

The exaction by the city of Helena of a water rental from its inhabitants is not a levy of taxes upon the inhabitants and does not contravene the provisions of section 4, Article XII, supra, for a water rental is not a tax. (Public Service Commission v.City of Helena, 52 Mont. 527, 159 P. 24.) But should the city see fit to levy taxes for the payment of the bonds, the Act does not contravene the Constitution. It seems clear to us that the constitutional provision means just what it says, — that the legislature shall not levy taxes upon cities for city purposes but may by law invest in the corporate authorities power to assess and collect taxes for such purposes. (Owings v. City of Olympia, 88 Wn. 289, 152 P. 1019.)

The state of Washington has a constitutional provision similar to our section 4. In Baker v. Seattle, 2 Wn. 576,27 P. 462, the court refused to follow Illinois. Later decisions of the Washington court have followed the doctrine of Baker v.Seattle. (Owings v. City of Olympia, supra, and cases cited.)

A Florida case, Potter v. Lainhart, 44 Fla. 647, 33 So. 251, grew out of an Act of the legislature which undertook to validate bonds issued pursuant to an election and alleged to be void. Among other objections to the validity of the Act it was urged that it was in conflict with section 5 of Article IX of the Constitution of Florida, which provides that the "legislature shall authorize the several counties and incorporated cities or towns in the state to assess and impose taxes for county and municipal purposes, and for no other purposes." There, as here, the plaintiff relied upon the Illinois decisions but the court refused to follow them. Speaking of the validating Act the court said: "It undertakes to confer no new powers nor to impose any new duties, but simply to validate irregularities in the execution of granted powers, and the accomplishment of this is not the arbitrary imposition of a debt against the county."

In Illinois it is said that the validation of a bond issue by granting the power to the municipality after the municipality has attempted to exercise it amounts to the imposition of a debt by the legislature which is forbidden by constitutional provisions somewhat similar to section 4 of Article XII of our Constitution. Upon this point early cases in that state (Cowgill v. Long,15 Ill. 202; Schofield v. Watkins, 22 Ill. 66; Keithsburg v. Frick, 34 Ill. 405) do not seem to be in harmony withMarshall v. Silliman, 61 Ill. 218, Wiley v. Silliman,62 Ill. 170, and later cases, some of which are cited in counsel's brief, two of which are Cornell v. People, 107 Ill. 372; People ex rel.Stevenson v. Illinois Central R.R. Co., 310 Ill. 212,141 N.E. 822.

The Silliman Cases, which related to bond issues in favor of a railroad, came before the United States supreme court inTownship of Elmwood v. Marcy, 92 U.S. 289, 23 L.Ed. 710, in which the majority of the court said: "We are not called upon to vindicate the decisions of the supreme court of Illinois in these cases, or approve the reasoning by which it reached its conclusions. If the questions before us had never been passed upon by it, some of my brethren who agree to this opinion might take a different view of them," and upheld the decision appealed from upon the ground that the supreme court of the United States follows the construction given by the court of last resort to the Constitution and statutes of its own state. Three justices dissented. They held, Mr. Justice Strong writing the dissenting opinion, that the curative Act did validate the election. "It is argued, however, that the validating Act of April 17, 1869, is unconstitutional because it compels a municipal corporation to contract and pay a debt without its consent. It is said the election by which it was voted to subscribe was a nullity, and, therefore, that there never was any consent to the subscription. The argument is founded upon a complete misconception of the facts and of the law. The statute was in no just sense an Act to confer new power, or to impose a debt. It was what it purports to be, — an Act to cure the defective execution of a power already granted." Later the United States supreme court, in passing upon the validity of certain bond issues of Illinois communities, has refused to follow the rule of the Illinois court. (Anderson v.Santa Anna Twp., 116 U.S. 356, 29 L.Ed. 633,6 Sup. Ct. Rep. 413; Bolles v. Brimfield, 120 U.S. 759, 764, 30 L.Ed. 786,7 Sup. Ct. Rep. 736.)

Not by any fair process of reasoning may it be said that the legislature in validating the election has levied a tax upon the inhabitants or property of a city for municipal or other purposes. No legislative compulsion rests upon the city because of the curative Act. The corporate authorities may or may not levy taxes to pay the bonds. The curative statute which is the object of attack is simply a declaration that the election which the corporate authorities and people of Helena attempted to hold, but which was invalid because of the failure to follow statutory directions, which the legislature might have dispensed with in the first instance, is now valid. We fail to see any infringement upon the "home rule" doctrine, or to see the applicability ofHelena Consolidated Water Co. v. Steele, 20 Mont. 1, 37 L.R.A. 412, 49 P. 382, or State ex rel. Gerry v. Edwards,42 Mont. 135, Ann. Cas. 1912A, 1063, 32 L.R.A. (n.s.) 1078, 111 P. 734, to the condition here presented.

In the last analysis the question is one of legislative power. The law-making body had the power, and deeming that the conditions were such as to require remedial legislation, exercised that power. In so doing it cured the omissions of the corporate authorities and declared the election valid.

The fact conditions obtaining when we ordered the issuance of an injunction in this case have changed. The election was then invalid but for the reasons stated above is now valid. Upon the facts now presented it follows that the injunction issued pursuant to the original opinion, now being without support in law, must be and hereby is recalled and held for naught.

ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur.