Opinion
No. 33530.
December 5, 1938.
1. COUNTIES.
Under statute requiring refunding bonds issued by political subdivision of state to mature serially beginning not more than 5 years and running not longer than 30 years "after this date," refunding bonds may begin to mature at a date 5 years from date of issuance of bonds and need not begin to mature at date not more than 5 years after passage of statute, since quoted words were intended to read "after their date" (Laws 1934, chapter 143, section 5, as amended by Laws 1936, chapter 279; Laws 1934, chapter 143, section 7).
2. STATUTES.
The true meaning of a statute when ascertained will be enforced by court even to the extent of correcting language therein used.
3. COUNTIES.
Under statute authorizing issuance of refunding bonds by political subdivision of state, county board of supervisors need not adjudicate that the funds available from taxes will not be sufficient to pay the next maturing bonds and all accruing interest, or that any bond is then in default, as a condition precedent to right to issue refunding bonds, determination by board of supervisors that revenue available for payment of maturing bonds and interest will not be adequate in the future being sufficient (Laws 1934, chapter 143, section 4).
4. COUNTIES.
Even if county board of supervisors improperly transferred money from road protection bond fund to another county fund, and but for such improper transfer funds would have been available to meet amount due on original bond issue on November 1, 1938, and even if taxpayers were entitled to have the amount improperly transferred returned to road protection bond fund, board of supervisors could nevertheless issue refunding bonds, where board adjudicated that revenue available for payment of maturing bonds and interest would be inadequate in the future (Laws 1934, chapter 143, section 4).
APPEAL from the chancery court of Hancock county; HON. D.M. RUSSELL, Chancellor.
Edward I. Jones, of Bay St. Louis, for appellants.
The court erred in holding that the board of supervisors followed Chapter 143 of the Laws of Mississippi of 1934, as amended by Chapter 279 of the Laws of Mississippi of 1936 in fixing the maturities of the refunding bonds sought to be issued.
Chapter 279 of the Laws of 1936 was dated on the 24th day of March, 1936, and to proceed under said section the first bonds of the issue must mature not later than March 24, 1941, but the board of supervisors provided for maturities of the bonds herein attempted to be validated, beginning the first day of May, 1943, and this was not in accordance with the said statute under which they were attempted to be issued.
The court erred in holding that "There are not and will not be sufficient funds on hand with which to pay said bonds."
The board of supervisors, at its March, 1938, meeting, transferred out of the road protection sinking bond fund the amount of $24,000, being automobile privilege license paid into said fund by the sheriff and tax collector under Chapter 319 of the Laws of 1924, and placed said money in the road fund. The board had no authority whatever to transfer said $24,000 out of said road protection sinking bond fund, but purported to act under an opinion of the Attorney-General of the State, which, on its face, did not give the board a scintilla of authority to transfer said $24,000 of the said road protection sinking bond fund unless there was surplus in said road protection bond and interest sinking fund; but the board did, without authority, transfer said $24,000 of motor vehicle privilege licenses without regard to the maturities of the road protection bonds and interest, and seemingly for the express purpose of creating a deficiency in the road protection fund, so that they could refund said road protection bond issue.
Burdeaux v. Cowan, 181 So. 852.
The $24,000 unlawfully transferred should be returned and replaced in said road protection bond fund, or at least a sufficient amount thereof which would cover the $17,000 shown by the record to be lacking to pay all maturing bonds and interest.
The court erred in overruling the objection that the board, in its resolution, "does not judicially determine and find that funds available from taxes are not sufficient to pay said outstanding bonds and interest thereof whenever they mature."
The resolution of the board attempting to adjudicate and find sufficient facts to have authority under Section 4 of Chapter 143 of the Laws of 1934 to issue refunding bonds, failed to use the words of the statute or such words as would substantially comform to the intent of the statute.
The finding of the board does not adjudicate that at the time there was not a sufficient amount on hand to pay the maturing bonds and interest whenever they may mature and surely the legislature did not intend to permit a governing authority to refund bonds when there were sufficient funds on hand to pay the next maturing bonds and interest, and unless the board adjudicated in the wording of the statute or such words as would substantially conform to the intent of the statute, the board would be without power to refund the said bonds.
George R. Smith, of Gulfport, and W.J. Gex, Jr., and Robert L. Genin, both of Bay St. Louis, for appellee.
To fix maturities of all bonds from the date of the act was never the intention or purpose of the legislature, for the reason that the maximum time under the provisions of the act would be reduced each year thereafter; in other words, in 1934, after the passage of the act, the time would run only twenty-nine years, in 1935 twenty-eight years, 1936 twenty-seven years, 1937 twenty-six years and these bonds to be issued in 1938, the maximum period would be twenty-five years. Then again the act of 1936 provides they shall begin to mature not more than five years, and if appellants construction was correct this year they should be made to mature beginning not more than two years so if that construction of the act was applied, in five years from the date of the act of 1936, no bonds could be issued under that act. Construing the Act of 1934 and 1936 as a whole, there can be no doubt that the legislature intended the words "this date" to mean the date of the resolution or order passed by the board of governing authority.
The intent and purpose of the act of 1934 and 1936 is clear that "this date" as expressed in the act, meant the date of the issuance of the bonds.
Gandy v. Public Service Corp., 140 So. 687, 165 Miss. 187.
The court in construing a statute which has been amended, must consider it as it stands after amendment.
George v. Woods, 49 So. 147, 94 Miss. 268; Lang v. Bd. of Suprs., Harrison County, 75 So. 126, 114 Miss. 341.
In determining the legislative intent the dates of enactment will be looked to, and the one last in time will be held as the law.
Mobile Saving Bank v. Patty, 16 Fed. 751.
After a careful search of the record and decree of the court below, we are unable to find where the court has held "there are not and will not be sufficient funds on hand with which to pay said bonds." If, however, the court had so held, we respectfully submit the record would have justified the holding.
The fact that the road and bridge fund this year received the revenue for the repair of roads and bridges in the county, the purpose for which it was levied, cannot be complained of by the objector. The roads of the county have been suffering because of the loss of this revenue in the years past and because of the inability of the board of supervisors in 1926 to see the coming depression in the nineteen thirties. Now that the law provides a method, the board of supervisors have availed themselves of the opportunity of refinancing these obligations.
The right and power to refinance bonds under Chapter 143 of the Laws of 1934, and acts amendatory thereto, are broad and liberal and does not require a default in the payment of the bonds. The governing authorities may anticipate default and protect the credit and interest of the county.
The board of supervisors being convinced that it was not advantageous or profitable to levy more taxes, that by so doing it would amount to confiscation, that there were no funds capable of being used each year to pay these bonds and the bonds maturing in the future, with interest, availed themselves of the benefits of the statute and proceeded to refinance the bonds.
It was not necessary for the board to adjudicate there was no money on hand, or presently in bank. Substantial compliance with the statute is all that is necessary, but the board of supervisors nevertheless have strictly complied with the statute.
The fundamental rule of construction is to ascertain and give effect to the intention of the legislature as expressed in the statute.
Darnell v. Johnston, 68 So. 780, 109 Miss. 570; Roseberry v. Norsworthy, 100 So. 514, 135 Miss. 845.
Argued orally by Edward I. Jones, for appellant, and by W.J. Gex, Jr., George R. Smith and Robert L. Genin, for appellee.
Under the provisions of chapter 319 of the Laws of 1924, as amended by chapter 234 of the Laws of 1926, the boards of supervisors in counties along the gulf coast of the state were required to erect and maintain all necessary sea-walls for the protection of the public highways against damages that would be otherwise occasioned by tide-waters being driven against the same in consequence of storms; and road protection bonds, generally known as sea-wall bonds, were authorized to be issued for that purpose. It was contemplated by the Act, as shown by the terms and provisions thereof, that these bonds should be repaid primarily from funds derived from license taxes and taxes on gasoline and other fuel used in the operation of motor vehicles and other machines driven by motor power, instead of from funds raised by an ad valorem tax.
Accordingly, Hancock County issued and sold $1,250,000 of such bonds. The annual installments of principal and all accrued interest were kept paid, without the necessity of borrowing money for that purpose, until the year 1936, when it became necessary to issue $60,000 of refunding bonds in order to avoid default being made in the payment of the annual installments then due, or soon to become due, under the original issue; and it likewise became necessary to levy an ad valorem tax — five mills per annum for the past three years — to supply the funds required.
On April 18, 1938, there remained outstanding and unpaid on these sea-wall bonds, including the $60,000 of refunding bonds, the principal sum of $1,043,000, when the refunding bonds now in question in this case were authorized to be issued for said amount, at a less rate of interest per annum than the original issue and providing for greatly reduced annual installments of maturing principal.
They were issued under chapter 143 of the Laws of 1934, as amended by chapter 279 of the Laws of 1936, and were to bear date of May 1, 1938, and mature serially, beginning on May 1, 1943, and running to May 1, 1963, inclusive, at 5% interest per annum; and after being duly examined and approved by the State Bond Attorney, the same were validated by decree of the chancery court, over the objections filed by the appellant Norton Haas and others, and from which validation decree they appeal.
The validity of the issuance of the bond is challenged on the following grounds: (1) That section 5 of the act of 1934, supra, as amended by the act of 1936, required the bonds to begin maturing serially at a date not more than five years from the date of the passage of the act of 1934, and not five years from the date of the issuance of the bonds; (2) that the minutes of the board of supervisors did not affirmatively show that funds available from taxes were not sufficient to pay the outstanding bonds and interest at the maturity thereof; (3) that the necessary funds to pay the bonds next maturing, together with the annual interest on all bonds then outstanding, were on hand; and (4) that no bonds were in default at the time of the issuance of the refunding bonds here in question.
Section 5 of the Act, above referred to, as amended, does in fact provide, inter alia, that: "All such bonds shall be made to mature serially, beginning not more than five (5) years and running not longer than thirty (30) years after this date" (Italics ours); and it then proceeds to specify what per cent of the total issue shall mature the first six years, "beginning in the fifth year after the date of such bonds." Thus it will be seen from the phrase, last above quoted, that the words "after this date," previously used in the statute, and which we have italicized, were intended to read after their date. These words of the Act were amended, so as to read "after their date," by chapter 74 of the Laws of 1938 (Ex. Sess.). This amendment was not passed, however, until August 20, 1938. But, it was said in the case of Gandy v. Public Service Corporation, 163 Miss. 187, 140 So. 687, that: "The true meaning of a statute, when ascertained, will be enforced by the courts, even to the extent of correcting language therein used." And in the case of Bobo v. Levee Commissioners, 92 Miss. 792, 46 So. 819, the word "not" was read out of section 3 of chapter 97 of the Laws of 1908, in order to carry out the intent and purpose of the legislature in its enactment. See, also, Briscoe v. Anketell, 28 Miss. 361, 61 Am. Dec. 553, and State v. Louisville, etc., R. Company, 97 Miss. 35, 51 So. 918, 53 So. 454, Ann. Cas. 1912C, 1150. Moreover, if the Act in question had intended to require all refunding bonds issued thereunder to begin maturing in not more than five years after its passage, instead of five years from the date of their issuance, then it would necessarily follow that bonds issued immediately prior to the expiration of five years from the passage of the Act would mature before ample opportunity is afforded the governing authorities to dispose of them. Again, we find nothing in the statute indicating a purpose on the part of the legislature to limit the period of its operation as a law, or the time within which outstanding bonded indebtedness may be refunded under any of its terms and provisions, where the funds available from taxes are not sufficient to pay such indebtedness when due. Section 7 of the Act provides that: "the governing authority may, at any time or times, exercise the powers granted by the act in the refunding of outstanding bonds . . ., provided they are issued within three years after the date of the resolution or order providing therefor."
Neither do we think it necessary in any case that the board of supervisors shall adjudicate that the funds available from taxes will not be sufficient to pay the next maturing bond and all accrued interest, nor that any bond is then in default, as a condition precedent to its right to issue refunding bonds; and especially where the opportunity presently exists to issue and sell, or to issue and exchange with the holder or holders of the original bonds, the refunding bonds at a cheaper rate of interest and in greatly reduced principal installments per annum, when it appears certain that a failure to do so would result in the already high ad valorem tax rate of 55 mills in the county being increased to enable the board to meet future installments maturing subsequent to the current year. Section 4 of chapter 143 of the Laws of 1934 expressly provides that: "The governing authority of any political subdivision, may, . . . issue the bonds of such subdivision for the purpose of refunding any bonded indebtedness of such subdivision now or hereafter outstanding, and whether such bonded indebtedness shall at the time of such refunding be due or to mature in the future; . . . and such bonds may be issued in sufficient amount to pay and retire any of the then outstanding bonds whether matured or to mature in the future, . . ."
It is disclosed by the testimony of the only witness in the case that the board of supervisors will need approximately $94,000 in 1939 and $106,000 in 1940 to meet the payments due on the original bond issue, while the amount that would be required to take care of the annual maturities of the refunding bonds would not exceed $81,000 per year; and that these reduced payments could be met without the necessity of levying any ad valorem taxes.
It is urged by the objectors, however, that the board of supervisors transferred, without authority of law, the sum of $24,000 from the road protection bond fund to another county fund and thereby brought about a deficit in the funds available for meeting the amount due on the original bond issue on November 1, 1938; that, but for this act, there would have been no necessity for issuing refunding bonds at the time the same were authorized by the board of supervisors to be issued; and that wherefore the refunding bonds should not be validated. However, the authority to issue the refunding bonds in question would have existed even though such transfer had not been made. Conceding, for the sake of argument alone, that the taxpayers of the county would be entitled to have this $24,000 returned to the road protection bond fund under a proper proceeding in that behalf, and that when so transferred the funds then available would be sufficient to meet the payment due on the original bond issue on November 1, 1938, the fact remains that the board of supervisors would nevertheless have been authorized to issue the refunding bonds in order to avoid default being made as to future installments due.
In authorizing the refunding bonds to be issued the board of supervisors adjudicated that the revenue available for the payment of the maturing bonds and interest would be inadequate in the future; that to meet such deficiency it would be necessary to levy an increased ad valorem tax above the fifty-five mills then being collected, thereby imposing upon the taxpayers a burden such as would result in greater delinquencies in the payment of taxes; and further recited in its order all other necessary jurisdictional facts to show both the authority and what the board conceived to be the expediency of issuing the refunding bonds in question.
From the foregoing conclusions, it therefore follows that the decree of the court below in validating the refunding bonds in question should be affirmed.
Affirmed.