Hunt v. Fawcett

— 397 — The opinion of the court was delivered by Anders, J.— The appellant, a taxpayer of Pierce county, by this action seeks to restrain the respondents, as the board of county commissioners of said county, from issuing negotiable five per cent, twenty year bonds of said county in the sum of §300,000, or delivering the same to the Imperial Loan & Trust Company, a corporation, in pursuance of a contract of sale entered into between said board of commissioners and said company. The respondents demurred to the complaint, and their demurrer was sustained by the court and the action dismissed. It appears from the complaint, the material allegations of which are admitted by the demurrer, that between the 12th day of September, 1892, and the 3d day of May, 1893, inclusive, the board of county commissioners of Pierce county entered into contracts for finishing and furnishing the new court house, and thereby attempted to incur indebtedness against said county to the amount of §42,-298.60, and during the same period of time, issued warrants on the general fund for current expenses to the amount of §68,028.32. At the time this indebtedness was so attempted to be incurred, the indebtedness of the county had already reached the limit of one and one-half per cent, of the taxable property therein, and the attempted indebtedness in question had not been assented to by three-fifths of the voters voting thereon at an election held for that purpose, and was, therefore, invalid. Const., art. 8, § 6. On May 17, 1893, the board of commissioners of said county passed a resolution to submit to the voters of the county the question of validating the aforesaid attempted indebtedness at an election to be held on June 20, 1893, in accordance with the provisions of the act of March 9, 1893 (Laws 1893, p. 181), and also the further question of authorizing the said board of county commissioners to — 398 — issue negotiable bonds of said county in the amount of $300, CiOO, above the limit of one and one-half per cent, indebtedness allowed by the constitution to be incurred by the commissioners for the .purpose of procuring money to fund outstanding warrants so as to reduce the indebtedness incurred by the commissioners below the said limit, said bonds to draw five per cent, annual interest and to be payable in gold coin in twenty years from date thereof. Pursuant to the foregoing resolution, an election was held on June 20, 1893, at which three propositions were submitted to the voters, as follows: (1) To validate the court house contracts entered into between September 12, 1892, and May 3, 1893. (2) To validate warrants issued between those dates. (3) To authorize the commissioners to issue $300,000 of five per cent, gold bonds, above the limit allowed by law to be incurred without a vote of the people, for the purpose of procuring money to fund outstanding warrants. Each of these propositions received the assent of more than three-fifths of the voters at said election. On November 11, 1893, the commissioners entered into a contract with the Imperial Loan & Trust Company, which, upon certain conditions therein specified, binds the Trust Company to take bonds in the sum of $300,000 at par and accrued interest, and by which the county is bound to pay the company the sum of $14,750, “as and for expenses and commissions. ’ ’ These bonds recite upon their face that they are issued under the county funding act of March 21, 1890, and in pursuance of the election held on June 20, 1893. The commissioners are proposing to sell the bonds under this contract and to use the proceeds to pay outstanding warrants, some of the warrants to be paid being part of the indebtedness attempted to be validated, and then to incur further indebtedness under the claim that this $300,000 debt must not be reckoned in estimating — 399 — the one and one-half per cent, limit which may be incurred without the assent of three-fifths of the voters of the county. It appears from the pleadings that only such indebtedness as was incurred after the assessment of 1892 became operative was invalid, and it therefore becomes important to ascertain that date. It is claimed by the appellant that it was the 20th day of August, 1892, because upon that day the county board of equalization adjourned and the rolls were footed. But we are of the opinion that said assessment did not take effect until October 15, 1892. On that day the work of the state board of equalization was completed, and then, and not until then, did the value of the property in the county, for the purposes of state and county taxation, become fixed and certain. See Culbertson v. Fulton, 127 Ill. 36 (18 N. E. 781). It must be conceded that all indebtedness attempted to be created against the county by the commissioners, after the assessment of 1892 became effective, was void, because the then existing indebtedness of the county was greater than one and one-half per cent, of the value of the taxable property therein, as shown by that assessment. This void indebtedness could only be made valid by legislative authority (Rehmke v. Goodwin, 2 Wash. 676, 27 Pac. 473), and such authority was granted by the act of March 9, 1893. Laws 1893, p. 181. Was it, or any part thereof, validated by the election of June 20, 1893, which was held for that purpose ? The respondents contend that all of the indebtedness attempted to be created by them, not only before but after March 9, 1893, and up to and including May 3, 1893, was thereby ratified and thenceforth became, and now is, a legal obligation of the county. On the other hand the appellant insists — (1) That all indebtedness attempted to be created after March 9, 1893, when the validating act took effect, was not, and could not be, vali — 400 — dated, and (2) that the joinder of this indebtedness which could not be validated with the indebtedness incurred prior to the passage of the statute, in the propositions submitted to the voters at the election, vitiated and rendered nugatory the entire proceedings. We entertain no doubt of the correctness of appellant’s first proposition. The first section of the statute conclusively settles that question, for it is therein provided that — “Any county in this state may ratify, in the manner prescribed in this act, the attempted incurring of any indebtedness of such county by the issuing of warrants, making of contracts or creation of other evidences of indebtedness on the part of such county by the board of county commissioners or other officers of such county at any time prior to the time when this act shall take effect, ’ ’ etc. This statute is essentially a curative statute, and is only operative upon past transactions. It grants no license to create debts, but it provides in clear and explicit language, the only method whereby indebtedness honestly attempted to be created for legitimate purposes may be ratified; and an examination of- its provisions constrains us to yield our assent to appellant’s second proposition also, and to conclude that none of the indebtedness attempted to be incurred has been legally ratified. The second section of the act under consideration provides that-— “Whenever the board of county commissioners of any such county shall deem it advisable that the ratification authorized by this act shall be obtained, they shall provide therefor by resolution, which shall specify separately the amounts of each distinct class of such indebtedness proposed to be ratified, with the date of the attempted incurring thereof, or, if any such class shall be composed of more than one item, the dates between which the different items were attempted to be incurred, and the general nature of the indebtedness comprised in each such class.” — 401 — Now, while the submission to the voters in this case specified the different classes of indebtedness proposed for ratification, it failed to specify the dates at or between which the different items of indebtedness were attempted to be incurred, or the dates of the attempted incurring of any distinct class capable of ratification. ' It is claimed, however, on behalf of the respondents, that the indebtedness attempted to be contracted prior to March 9, 1893, was certainly ratified even if that created subsequently was not. But it is a sufficient answer to that contention to say that no such proposition was submitted or voted upon; and besides, to hold that the indebtedness contracted between September 12 and March 9 was ratified, and the balance not ratified, would be to create a class of indebtedness not specified in the resolution of the commissioners. It may be true that the indebtedness attempted to be incurred before March 9 can be separated from that which was attempted to be incurred after that date, but we have no means of knowing that the electors would have ratified the former if it had been separately submitted to them. It is certainly true that the voters of Pierce county have never voted to validate that indebtedness, and until they have so expressed themselves the indebtedness is void. The appellant further contends that the county funding act of March 21, 1890 (Laws 1889-90, p. 37), gives no authority to hold an election to authorize the issuing of bonds for funding purposes; and we concede that no such power is thereby expressly given. Under that act valid indebtedness may be funded without a vote of the people. Murry v. Fay, 2 Wash. 352 (26 Pac. 533). But it does not follow that, because county commissioners are authorized to issue bonds for certain purposes whenever they may deem it ádvisable to do so, without first submitting the question to a popular vote, bonds issued for the same purposes are necessarily rendered invalid by — 402 — reason of the fact that their issuance was in accordance with the will of the voters as expressed at a formal election. That merely doing more than is necessary to accomplish a particular thing will not destroy the effect of that which it was necessary to do, is a self-evident proposition. If, therefore, the bonds in question were designed merely to fund valid existing indebtedness contracted under §§ 1 or 2 of the funding act, their validity could not be successfully questioned. Nor are they invalid if issued for the purpose of procuring money for any other strictly county purpose, under the provisions of § 3 of that act. And the respondents claim that the purpose for which they propose to issue them is a strictly county purpose. That may be technically true, but we fail to find anything either in the constitution or the statutes authorizing them to treat these bonds, if issued and sold, as constituting no part of the amount of the one and one-half per cent, of the taxable property of the county, to which the commissioners are limited in contracting indebtedness at their own discretion. It is plainly stated in § 2 of the funding act, that the entire indebtedness of any county shall not exceed in amount five per centum of the taxable property therein, and the language of the constitution is equally explicit. Art. 8, § 6. Under our law, whenever the existing indebtedness of a county, whether evidenced by bonds or warrants, reaches the one and one-half per cent, limit, no further debts can be contracted without the assent of three-fifths of the voters of such county at an election held for that purpose. It follows, therefore, that the claim of the respondents that they have a right to dispose of these or any other bonds and use a part or all of the proceeds to redeem the indebtedness of the county evidenced by outstanding warrants below the one and one-half per cent, limit,- and then issue other warrants to pay current expenses until the amount of such warrants equals said limit, is utterly without foun — 403 — dation. No doubt it would be convenient for the various boards of county commissioners to have at all times discretionary control of indebtedness equal to one and one-half per cent, of taxable property; but a power so clearly withheld by the legislature cannot be conferred by the courts. Lastly, it is urged on behalf of the appellant that the contract between the Imperial Loan & Trust Company and the county is illegal. The statute prescribes that county bonds may not be sold by the county commissioners at less than their par value. While the contemplated sale in this case is nominally a sale at par, it is in fact a sale at a discount and, therefore, within the inhibition of the statute. To sell the bonds at their face value and at the same time pay a large commission to the purchaser is not to sell at par. It is argued, however, by the learned counsel for the respondents that, inasmuch as the county might have issued seven instead of five per cent, bonds, and inasmuch as the bonds as sold do not cost the county a greater rate of interest than seven per cent, on the amount realized, the sale is really not below par. But the argument may be sufficiently answered by saying that the validity of the contract must depend upon its terms and not upon its ultimate effect upon the county. The judgment is reversed, and the cause remanded with directions to overrule the demurrer. Dunbar, C. J., and Scott, J., concur.