ROBERTS & CO. v. TAFT et al., 109 F. 825

SEVERENS, Circuit Judge, having made the preceding statement of the case, delivered the opinion of the court. Counsel for the appellant, in their brief and argument, have, as we think, quite properly moved directly to the decisive question in the case, which is whether the construction given by the court below to the Ohio statutes giving or affecting the authority of the trustees of the sinking fund to dispose of the new bonds is the correct construction or not.

And it cannot be said that the question is wholly free from difficulty, although, upon an attentive consideration of the subject, we have reached a conclusion upon which we are comparatively free from doubt. It is clear enough that the transaction was for a sale of the new bonds, rather than an exchange of them for'the old ones, within the meaning of the statutes referred to. The parties thereto properly characterized it as a sale and purchase by the terms employed in their stipulations. Old bonds were to be taken as part of the purchase money.

In that way it was expected that the general purpose of taking up the old bonds would be promoted at the same time with the selling of the new. Moreover, it was provided that some part of the purchase price might be paid in cash if paid within a prescribed period of time. If, however, the transaction were held to constitute a contract for a sale in part and for an exchange in part, it would not affect the conclusion, for the contract can only be enforced, if at all, as an entirety. We turn now to see by what statutes the transaction is to be governed.

In the statement preceding this opinion we have set forth a copy of

section 2701, which enables the municipality to borrow money and issue bonds to provide for the payment of indebtedness which it cannot otherwise meet at maturity; and also a copy of

section 2709. So much of this latter

section as precedes the proviso originally constituted a

section embodied in the provisions of'the

chapter of the Ohio statutes relating to the power of municipal corporations to borrow money and issue bonds. The proviso was added April 26, 1898. It will be observed that tills section, as it was originally enacted, was in general and very comprehensive terms, and it was evidently intended, as it seems to us, to control the sale of all municipal bonds. We do not think it very important that the provisions relating to the sinking fund are in another chapter.

The sinking fund is a mere instrumentality in the management of the fiscal affairs of the city, and has its special illness in aiding in the management of the city’s bonded debt, and Is only a part of the general scheme mapped out in chapters 2 and 3 of division 9 of the statutes. The conditions present a clear case for the application of the rule of construction of statutes which are in pari materia, the rule being that all acts in pari materia are to be taken together, as if they were one law. Patterson v. Winn, 11 Wheat. 380, 385, 6 L. Ed. 500; U. S. v. Babbit, 1 Black, 55, 17 L.

Ed. 94; In re Distilled Spirits, 11 Wall. 356, 20 L. Ed. 167. The rule is equally applicable notwithstanding the provisions are found in different chapters or divisions of the laws, and though they are enacted at different periods of time. Suth. St. Const. 283. And again, in the same work, it is correctly said, in

section 288: “Wlien enactments separately made are read in pari materia, they are. treated as having- formed in the minds of the enacting body parts of a connected whole, though considered by such body at different dates, and under distinct and varied aspects of the common subject. Such a principle is in harmony with the actual practice of legislative bodies, and is essential to give unity to the laws, and connect them in a symmetrical system. Such statutes are taken together and construed as one system, and the object is to carry into effect the intention.

It is to be inferred that a code of statutes relating to one subject was governed by one spirit ami policy.” ■ When it was proposed to enact a law providing for the issue oí new bonds jto exchange for old, it was very appropriately attached as a proviso to the general provisions of

section ,2709, as that

section then stood. This in no wise impaired the force of the original enactment, but created an exception permitting an exchange of bonds in the circumstances and conditions prescribed. But that power was granted to the legislative body of the municipality, and not to any subordinate body; for it is conceded that the words “trustees or council” refer dis tribu lively to the “trustees” of hamlets or towns, and to the “council” of cities and villages. It Is worthy of notice, in passing, that the legislature in granting this power to exchange bonds did so by express mention of that method.

It is evident that the trustees of the sinking fund supposed that: they had authority to make this contract from sections 2729a and 2729b, which are also set forth in the statement preliminary to this opinion. These sections are part of an “act supplementary to

chapter 3,” which relates to the sinking fund. This supplementary act was passed in 1880. Only the two' sections referred to have any apparent bearing upon the question of construction we are considering.

Section 2729a grants to the trustees of the sinking fund power to “make and issue the bonds of the city” “for the purpose of refunding the bonded debt,” and also for the purpose of buying the fee simple of real estate held by the city under perpetual leases, if that could be done to the advantage of the city. There is no suggestion of making exchange of new bonds for old, and the statute seems to contemplate simply the refunding of that species of debt. In view of the general mandate contained in

section 2709, we should expect that all subsequent legislation which was merely amendatoiy or supplementary to existing laws in regard to the issue and disposition of municipal bonds would be passed in contemplation of the general rule already established in regard to the disposition of the bonds when issued (admittedly a wise and prudent policy), unless the legislature should clearly indicate a different intent. No doubt this might be done by a necessary implication arising upon the words employed. Here there is no such implication.

Beyond'doubt the legislature intended a sale of the bonds which would be necessary to purchase the title to the real estate it had in view, and, if a different method were contemplated in “refunding the bonded debt,” we should expect to find some reference thereto. It is time, this is not of itself at all conclusive, but it is one of many signs which all point to one result. Then, in

section 2729b, we find distinct, if not necessary, implications that it was intended there should be a sale of the bonds.

It is there provided that “the secretary of the trustees of the sinking fund shall keep separate accounts of ¡the proceeds, and application thereof, of bonds used to refund such debts.” And, again, “purchasers of any bonds authorized by this act shall not be held responsible for the application of purchase money.” We think, therefore, there can be no reasonable doubt that the trustees were mistaken in supposing that they were empowered to make this contract by the above-quoted sections of the act of 1880, whether the contract was to be regarded as one for a sale (in which case it must have been advertised for competitive bidding), or for an exchange, which the council alone, and not the trustees, had power to make.

If, upon attentive consideration, we had found the construction of these statutes more obscure than it now seems to us, we should have been inclined to give, much weight to what is said to have been the

interpretation put upon them by the learned gentlemen who have at various times had charge of the sinking fund. But it is only in such case that the court is permitted to yield its own judgment. It is unnecessary to consider the other question, which is whether the execution of the agreement would unlawfully increase the bonded debt of the city. Nor have we any occasion to consider to what extent we are bound by the decision of the supreme court of Ohio, since we entirely agree with it upon the ground on which we rest our decision. The decree of the circuit court dismissing the bill will be affirmed.