
    Roberts, Appellant, vs. City of Madison, Respondent.
    
      February 27
    
    April 22, 1947.
    
    
      For the appellant there was a brief by Spohn, Ross, Stevens & Lamb of Madison, and oral argument by Francis L. Lamb.
    
    
      Harold E. Hanson, city attorney, for the respondent.
   Barlow, J.

Plaintiff is a taxpayer and water user in the city of Madison and as such has a right to bring this action. The city of Madison is about to spend $2,400 for the preparation of bonds which the plaintiff claims are illegal. As the stockholder in a private corporation has the right to interfere to protect the corporate funds from illegal acts, so the taxpayer in a municipal corporation has the right to enjoin the misapplication of public funds. 52 Am. Jur., Taxpayers’ Actions, p. 4, sec. 4; Victora v. Muscoda (1938), 228 Wis. 455, 279 N. W. 663. Taxpayers’ suits have often been brought, as here, to enjoin the issuance of bonds claimed to be unlawful. 52 Am. Jur. p. 8, sec. 12; Anno. 36 L. R. A. (N. S.) 3; Fowler v. Superior (1893), 85 Wis. 411, 54 N. W. 800.

Sec. 3, art. XI, constitution of the state of Wisconsin, as adopted in 1849, contained this provision:

“No county, city, town, village, school district, or other municipal corporation shall be allowed to become indebted in any manner or for any purpose to any amount including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness.”

This provision has never been changed or modified except as hereinafter noted, and is still the law of this state. This court held in State ex rel. Morgan v. Portage (1921), 174 Wis. 588, 184 N. W. 376, that a revenue bond issue by a municipality for the acquisition or construction of public utilities, such bonds being payable only from the revenue frorii the utilities and secured by mortgage liens thereon, did not create corporate indebtedness within the meaning of the constitutional limitation, but the court also held in that case that the bonds issued for improvements in a waterworks system rather than for its acquisition or-construction, would create an indebtedness which would be within the prohibition of that part of sec. 3, art. XI, Const., already set out.

To partially avoid the result of State ex rel. Morgan v. Portage, supra, at the November, 1932, election, sec. 3, art. XI, Const., was amended by adding thereto the following:

“Providing, that an indebtedness created for the purpose of purchasing, acquiring, leasing, constructing, extending, adding to, improving, conducting, controlling, operating or managing a public utility of a town, village or city, and secured solely by the property or income of such public utility, and whereby no municipal liability.is created, shall not be considered an indebtedness of such town, village or city, and shall not be included in arriving at such five per centum debt limitation;”

thereby removing municipal indebtedness created for the purpose and in the manner therein prescribed from the prohibition of sec. 3, art. XI.

By ch. 230, Laws of 1935, subd. 13 of-par. (b) of sub. (9) of sec. 66.06, Stats., was created. It is under the authority of subd. 13 that the plaintiff proposes to issue its bonds. It is as follows:

“Any city, village or town now or hereafter owning and operating a waterworks system and having controlled and operated and managed such waterworks system and which shall have expended moneys from its general fund or from the proceeds of its general obligation tax bonds, for the acquisition, construction, extension, improvement and operation of such waterworks system, or for any one or more of such purposes, may issue and sell waterworks mortgage bonds to procure funds to reimburse itself in an amount not exceeding the total amount of such expenditures not theretofore reimbursed. ...”

The question for decision is, Is subd. 13, sec. 66.06 (9) (b), Stats., invalid because it authorizes a municipality to mortgage a utility owned and operated by it for the purpose of reimbursing itself “in an amount not exceeding the total amount of such expenditures not theretofore reimbursed?” The proviso adopted in 1932 does not authorize the issue of revenue bonds so-called by a city for the purpose of restoring to the general fund funds which it has provided by general taxation or the issue of general-liability bonds and disbursed for the purpose of constructing a waterworks system. If authorizes the issue of such bonds solely for the purpose “of purchasing, acquiring, leasing, constructing, extending,.adding to, improving, conducting, controlling, .operating or managing a public utility.” It does not authorize a' municipality to issue revenue bonds for the purpose of reimbursing its general fund. It is quite evident that the person who drafted the amendment was much more concerned with the” interest of bondholders than that of taxpayers. There is no question but that the issue of the proposed bonds by the plaintiff would violate sec. 3 of art. XI, Const., as it stood prior to the adoption of the proviso. Therefore, if the issue of such bonds is not authorized by the amendment they fall within the prohibition of sec. 3. The statute authorizing the issue of such bonds is therefore in conflict with the amendment, and unconstitutional and void.

It does not appear that under the ordinance as adopted by the common council the issue of the bonds for the enumerated purposes are separable and for that reason it must be held that the entire issue falls within the restriction of sec. 3, art. XI, Const. The principal purpose of the issue was to restore $1,737,000 to the general fund.

It is argued that the statutory authority for the issuance of revenue bonds is to be distinguished from the constitutional limitation on municipal indebtedness. It is said that no constitutional provision prohibits the legislature from permitting a city to reimburse itself for funds already advanced for the acquisition of a waterworks utility. This is quite true if the city does not in the process exceed the constitutional debt limit. ' If it issues revenue bonds for any other purpose than those provided for by the amendment of 1932, the indebtedness' created thereby will not be within the terms of that provision. It was conceded upon the argument that unless the city can issue these bonds under the proviso of 1932, the debt ■limit will be exceeded.

Some argument is made based upon the proposition that a municipality operates in two capacities, but whether it operates in a proprietary capacity or in a governmental capacity, it is the same city and subject to the same constitutional limitations.

' It is sought to support the right of the defendant to issue the proposed bonds on the ground that they are “revenue bonds.” It has been held that a municipality may pledge its revenues already provided for without thereby creating a debt within the meaning of sec. 3, art. XI, Const. Hebard v. Ashland County (1882), 55 Wis. 145, 12 N. W. 437.

The bonds proposed to be issued are not revenue bonds. Sec. 66.06 (9) (b) 2, Stats., is as follows:

“All moneys received from any bonds issued pursuant hereto shall be applied solely for purchasing, acquiring, leasing, constructing, extending, adding to, improving, conducting, controlling, operating, or managing a public utility, and in the payment of the cost of any subsequent necessary .additions, improvements and extensions, and there shall be and there is hereby granted and created a statutory mortgage lien upon the public utility to the holders of. the said bonds and to the holders of the coupons of said bonds. The public utility shall remain subject to such statutory mortgage lien until the payment in full of the principal and interest of the bonds. Any holder of the said bonds or of any coupons attached thereto may either at law or in equity protect and enforce the statutory mortgage lien hereby conferred, and compel performance of all duties required by this subsection of the municipality. If there be any default in the payment of the principal or interest of any of the said bonds, any court having jurisdiction of the action may appoint a receiver to administer the said public utility on behalf of the said municipality, and the said bondholders, zvith power to charge and collect rates lawfully established sufficient to provide for the payment of the operating expenses and also to pay any bonds or obligations outstanding against said utility, and to apply the income and revenues thereof in conformity zvith this statute and the said ordinance, or the said court may declare the whole amount of said bonds due and payable and may order and direct the sale of the said public utility. Under any sale so ordered, the purchaser shall be vested with an indeterminate permit to maintain and operate the said public utility. . .

What the legislature has authorized the municipality to do is to mortgage its property to secure the payment of a loan for the purposes set out in subd. 2, sec. 66.06 (9) (b), Stats. Bonds, the payment of which may be enforced in case of default by a sale of the municipality’s property, including the right and privilege to operate the same, are not revenue bonds although the revenues may also be pledged for the payment of the bonds. Such bonds are straight mortgage bonds, and the remedies provided in sub. (9) (b) 2 can be invoked by the holder of a bond in default.

It is also argued that the proposed bonds can be issued on the theory that the issue comes within “the category of management.” The word “management” is not found in the amendment of 1932. Management is one thing and “managing a public utility” of a municipality is another. “Management” is a noun and is defined as the “act or art of managing; the manner of treating, directing, carrying on, or -using, for a purpose; conduct; control.” Webster. Managing a public utility is the act performed by the one who is vested with the power of management. The provision of the amendment of 1932 can mean no more than the right to create an indebtedness for the purpose of hiring a manager. It certainly does not include reimbursing the general fund of the city which has already been invested in its utility plant. In addition to that, subd. 13, sec. 66.06 (9) (b), Stats., already set out does not attempt to authorize the issue and sale of waterworks mortgage bonds to reimburse itself for funds expended for “managing a public utility” or for “management.” The issue of such bonds is limited to “acquisition, construction, extension, improvement and operation” of such waterworks system. Although the words “operation” and “managing a public utility” are used in the 1932 amendment, which makes one exclusive. of the other, only the word operation” is used in subd. 13. Even if “management” bonds could be issued under the 1932 amendment, the issue of such bonds has not been provided for by the legislature.

It is also argued that the indebtedness of the water utility is not the indebtedness of the city of Madison; that the debtor-creditor relationship which will come into existence if the bonds are issued will be between the utility and the obligees of the revenue bonds; that as matters stand now the waterworks has been financed from the general fund and from proceeds of its general-obligation tax bonds; that for moneys expended from the general fund the city has a purchase-money lien against the waterworks and its earnings.

The city owns its waterworks plant free and clear of all liens and incumbrances except as it may be said it is incumbered by the issue of .general tax bonds of the city. Just how the city can acquire a purchase-money lien upon the property which it has owned from the very beginning of its existence and never purchased, and the title to which it holds free and clear, is not explained. Those who seek to support the issue of bonds under subd. 13, sec. 66.06 (9)^ (b), Stats., seem to think of the utility as if it were an entity existing separate from the city. It has no corporate existence. It is like the city hall, the sewer system, and equipment owned by the city — merely a part of the city’s property. The fact that the plant is designated a “public utility” and the city is required to set it up on its books as a separate operation does not incorporate it. The bonds, if issued, will be executed by the city not by the “public utility.” The people have authorized municipalities to incumber part of their property for certain limited purposes. When incumbered for one of those designated purposes the amendment of 1932 provides that such incumbrance shall not be considered an indebtedness of the city.

No amount of eloquent argument or elucidation can put into the proviso of 1932 something that is not there. That proviso did not authorize the issue of revenue bonds for the purpose of reimbursing a city for funds it had already expended. It is fallacious to say that the city by reimbursing itself is acquiring something that it had already acquired. The legislature having no authority under the proviso of 1932 to authorize the issue of revenue bonds to enable a municipality to reimburse itsélf, subd. 13, sec. 66.06 (9) (b), Stats., is unconstitutional and void.

By the Court. — The order appealed from is reversed, and the cause is remanded with directions to enter judgment for the plaintiff.

Fairchild, J.

(dissenting). The statutory authority for the issuance of revenue bonds is to be distinguished from the constitutional limitation on municipal indebtedness. No constitutional provision prohibits the legislature from permitting a city to reimburse itself for funds already advanced for the acquisition of a water utility. Prior to an amendment made .iii 1932, sec. 3, art. XI, Const., did not contain the sentence quoted in the majority opinion. The evident purpose of the section as it was before that sentence was added was to limit the indebtedness of a municipality. It was recognized then, as it is now, that not all bond issues authorized by a municipality were “debts” of that municipality to which constitutional debt restrictions would apply. The issuance of revenue bonds, or bonds to be paid, not by the municipality as such, but out of the income of that to which the money so acquired was to be applied, was within the power of a municipality and such issuance did not create indebtedness within the meaning of municipal debt restrictions like those of sec. 3, art. XI. Brockenbrough v. Board of Water Com’rs (1903), 134 N. C. 1, 46 S. E. 28; Twichell v. Seattle (1919), 106 Wash. 32, 179 Pac. 127; Shields v. Loveland (1923), 74 Colo. 27, 218 Pac. 913; Butler v. Ashland (1925), 113 Or. 174, 232 Pac. 655; Bowling Green v. Kirby (1927), 220 Ky. 839, 295 S. W. 1004.

In 1921 a case similar to the one at bar came before this court. In that case, State ex rel. Morgan v. Portage, 174 Wis. 588, 184 N. W. 376, it was held that the issuance of revenue bonds by a municipality for the acquisition or construction of public utilities, such bonds being payable only from the revenue from the utilities and secured by mortgage liens, did not create corporate indebtedness within the constitutional limitation. But the court in that case also held, as pointed out in the majority opinion, that bonds issued for improvements in a waterworks system, rather than for its initial acquisition, since they would not be subject to a purchase-money lien, would be subject to the constitutional debt restrictions of sec. 3, art. XI, Const.

The 1932 amendment to sec. 3, art. XI, Const., made it clear that besides revenue bonds issued for the acquisition of utilities, similar bonds issued for extending or improving utilities were also not to be considered debts of the municipality within the meaning of that section if they were Secured solely by the property or income of such utility. The amendment put into words the previously accepted general proposition that revenue bonds payable from operating income of utilities did not constitute indebtedness, and the amendment removed the line of distinction, State ex rel. Morgan v. Portage, supra, created between revenue bonds issued for the acquisition of utilities and those issued for the improvement or extension of them.

It is now argued because the amendment did not list the word, “reimburse,” that sec. 66.06 (9) (b) 13, Stats., is unconstitutional. The effect of this is to say that waterworks mortgage-revenue bonds cannot .be issued without having the constitutional provisions relative to indebtedness apply because these bonds are intended, not for improvements upon or acquisition of property, but to reimburse the general fund from which the amount needed for the acquisition of the waterworks was initially obtained. Considering the amendment to sec. 3, art. XI, Const., in the light of traditional interpretations of municipal “indebtedness” and the genérally recognized right of municipalities to issue revenue bonds, the section does not limit the purposes for which revenue bonds can be issued to those specifically enumerated in the amendment. There may be other valid purposes for the issuance of revenue bonds than those specifically set forth in the amended sec. 3, art. XI. A municipality concededly has authority, for instance, to issue refunding bonds (sec. 66.06 (9) (b) 2) in spite of the fact that the purpose of “refunding” is not specifically listed in sec. 3, art. XI.

Even if we give the amendment an extremely restrictive interpretation, the plan proposed here would fairly come within the category of management, which is one of the purposes listed in the amendment. The proposed bond issue may well be the sort of indebtedness referred to in the exception clause in the amended sec. 3, art. XI, Const., where it says, “an indebtedness created for the purpose of purchasing, acquiring, leasing, constructing, extending, adding to, improving, conducting, controlling, operating or managing a public utility of a town, village or city.” Refinancing is a step in the process of acquiring the utility by the city and enabling the utility to pay its debt. It is certainly within the realm of managing a public utility to enable that utility to borrow money at a lesser rate, which appears to be what will result if the proposed bonds are issued.

Extensive recognition has been given to the proprietary capacity of a municipal corporation in this respect. In that capacity a city may exercise its business powers quite as effectively as a private corporation. In Logansport v. Public Service Comm. 202 Ind. 523, 532, 177 N. E. 249, 76 A. L. R. 838, it is said:

“When a municipal corporation engages in an activity of a business nature rather than one of a governmental nature, such as the supply of light or water or the operation of a railroad, which is generally engaged in by individuals or private corporations, it acts as such corporation and not in its sovereign capacity . . . and a city operates its municipally owned utility plant in its proprietary capacity as a private enterprise subject to the same liabilities, limitations, and regulation as any other public utility.”

The test as to the application of the constitutional provisions of sec. 3, art. XI, Const., is in the question, “Does this add to the indebtedness of the city ?” If it does not, then sec. 66.06 (9) (b) 13, Stats., gives the city the authority to proceed as it is endeavoring to do. If there is no tax liability that the transaction can visit upon the municipality, then the five per cent restriction of the constitution is not invaded and it is not necessary to levy a direct annual tax to support the issue. The indebtedness of the water utility is not the indebtedness of the city of Madison. The debtor-creditor relationship which will come into existence if the bonds are issued will be between the utility and the obligees of the revenue bonds. As matters stand now the waterworks has been financed from the general fund and from proceeds of its general-obligation tax bonds. For moneys expended from the general fund the city has a purchase-money lien against the waterworks and its earnings. If the principal now owed by the waterworks to the general fund is paid up through proceeds from the proposed bond issue, that purchase-money lien will no longer exist. In its stead will be a similar lien against the waterworks and its earnings in favor of those who are holders of the bonds. It would seem that the burden upon the waterworks would not be increased but shifted. No additional lien would be created. Because of this, the reasoning in State ex rel. Morgan v. Portage, supra, would not apply with as much force here as it did in that situation where the proposed bond issue was not to retire a purchase-money lien already in existence, but was to create an additional lien upon the waterworks property for improvements. As we have seen, the force of the court’s reasoning, even in the State ex rel. Morgan v. Portage situation has been minimized by the 1932 amendment to sec. 3, art. XI.

I ám authorized to state that Mr. Justice Wickhem joins in this dissent.  