McNutt v. Lemhi County

AILSHIE, J. The first assignment to the effect that the court erred in admitting any evidence on behalf of the defendant, for the reason that the amended answer did not state facts sufficient to constitute a defense, is not well taken. The answer presented issues sufficient, if found true, to defeat plaintiff’s recovery — exhibit “B” introduced by defendant, and to which plaintiff objected, and concerning the admission of which he now complains, was competent for the purpose of showing the number of taxpayers within Lemhi county for the year 1892, and its admission was not error. It was a certified copy of the names of all the taxpayers of the county for that year as shown by the assessment-roll and subsequent roll for the year. This evidence, however, did not establish the fact as to what number of the taxpayers for that year were qualified voters, and not being followed up by proof to that effect amounted to nothing. (Rev. Stats., sec. 1762.) The liabilities incurred for the year exceeded the revenue by $10,277.63. The entire road fund of the county for 1894 amounted to only $3,972.94, while the warrants issued for that year on the road fund amounted to $9,631.45. None of the orders of the board were ever appealed from and it is now contended that they are final. It should be observed, however, that section 1776 of the Revised Statutes, as amended February 14, 1899, applies only to persons and taxpayers and has no application to the municipality itself. The legislature never contemplated that the board of commissioners would ever want to appeal from their own action in making an order or paying a claim. In County of Ada v. Bullen Bridge Co., 5 Idaho, 88, 47 Pac. 818, 36 L. R. A. 367, the court said: “It is the opinion of this court that the provisions of section 1776 of the Revised Statutes do not apply to a case where the county is seeking to protect itself against the illegal or fraudulent acts of its board of commissioners in the issuance of warrants. And we think there will be nothing found in the other decisions of this court in any way contravening this view.” The county itself through its board of commissioners may resist the payment of a warrant which has been wrongfully and unlawfully issued, although no appeal was ever taken [71] by anyone from the order directing its issuance. This view is not in conflict with any of the former decisions of this court to which our attention has been directed. Section 3 of article 8 of the constitution provides: “No county, city, town, township, board of education or school district, or other subdivision of the state, shall incur any indebtedness, or liability, in any manner, for any purpose, exceeding in that year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at. an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the irfterest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness or liability incurred contrary to this provision shall be void; provided, that this section shall not be construed to apply to ¡he ordinary and necessary expenses authorized by the general laws of the state.” The building a courthouse, bridge or wagon road is not an ordinary expense within the meaning of the foregoing constitutional provisions. (Bannock County v. Bunting, 4 Idaho, 156, 37 Pac. 277; Dunbar v. Board of Commissioners, 5 Idaho, 407, 49 Pac. 409.) The indebtedness having been incurred for an extraordinary expense and in excess of the revenues provided for that year, and not having been authorized by a two-thirds vote of the people at an election held for that purpose, was in violation of the foregoing provision of the constitution. (Dunbar v. Board of Commissioners, supra; Ball v. Bannock County, 5 Idaho, 605, 51 Pac. 454.) In Dunbar v. Board of Commissioners, the court, speaking through Mr. Justice Quarles, said: “Under section 1762 of the Revised Statutes, a bridge cannot be built at a cost to exceed $1,000, unless one-third of the taxpayers who are voters of the county petition therefor, but since the adoption of our constitution this provision of the statute only applies when the revenues for the fiscal year are not exceeded; for if such expenditure [72] exceeds, when added to the necessary expenditures of the county for the fiscal year, the revenue for that year, then such bridge cannot be built without a two-thirds vote as provided in section 3, article 8 of the constitution.” It appears that for the year 1894 the county raised $6,621.54 revenue available for current expense, and appellant suggests that under section 946 of the Revised Statutes, as amended by act of February 7, 1899 (Sess. Laws, 1899, p. 131), the indebtedness incurred might have been paid out of the general fund of the county. One reason why this could not have been done was that it was used up for other purposes, and another reason is that the board never availed itself of the benefits of this statute and never ordered any part of this claim paid out of the general fund. A like view was expressed in Ada County v. Bullen Bridge Company, supra, where the court said: “Again, it does not appear that any attempt was ever made by the board of commissioners to avail themselves of the provision of section 11 of the act of March 13, 1891. No warrants were ever drawn upon the general fund, nor were there to be, under the terms of the contracts. Nor was there any special or other tax levied to meet the payments stipulated for in said contracts. The appeal to section 11 of the act of March 13, 1891, seems to have been entirely an afterthought, due, we apprehend, more to the acumen of counsel than any desire on the part of the commissioners to comply with the law. ’ ’ It is also argued that since the people of the county voted to issue bonds in a sufficient amount to cover all other indebtedness of the county and include these warrants, that such action amounts to' a ratification and takes the place of an election as required by section 3 of article 8 of the constitution. This contention was made in Dunbar v. Board of Commrs., and the court said: “It is true that an election was held to ascertain the will of the electors of Canyon county as to whether bonds should be issued ‘for the purpose of funding the outstanding indebtedness of said Canyon county incurred prior to January 14,1895, and as evidenced by the outstanding warrants of said Canyon county.’ But the record does not [73] show that the question of incurring the debts for building the Parma and Caldwell bridges, amounting to about $15,000, was submitted to the electors by petition or otherwise.” It is clear that there can be no ratification by a county of an act done in direct violation of the constitution. The constitution requires as a condition precedent to incurring such a liability as the one sued on, that the question should be first submitted to a vote of the people of the county and receive “the assent of two-thirds of the qualified electors thereof, voting at an election held for that purpose.” The purpose of the constitution is to require the specific question submitted to the electors unaccompanied and unencumbered with any other subject or question. The warrants sued on were not issued in conformity with the requirements of section 2006 of the Revised Statutes, which provides that: “All warrants must distinctly specify the liability for which they are drawn, and when it accrued. ’ ’ This statute was held mandatory by the United States circuit court of appeals in Bingham County v. First National Bank of Ogden, 122 Fed. 16, 58 C. C. A. 332. (See, also, Raymond v. People, 2 Colo. App. 329, 30 Pac. 504.) The judgment of the lower court must be affirmed, and it is so ordered. Costs awarded to respondent. Sullivan, J., concurs. Stoekslager, C. J., dissents.