Wormington v. Pierce

Strahan, C. J. The respondents rely upon several objections to sustain the decree, but the one mostly pressed .upon our attention arises- out of the provision in the con,-stitution of the state limiting county indebtedness, which is as follows: “No county shall create any debts or liabili¡ti.es which singly or in the aggregate exceed the sum of five thousand dolíais, except to suppress insurrection of to repel invasion.” (Oregon Const. Art. 11, § 10.) Facts are alleged in the complaint, and not denied by the answer, showing that the debts of Umatilla county are not within the saving clause of this section; therefore, we are to -determine the effect of this inhibition of -the constitution upon the power of the county to create debts and liabilities after the limit of five thousand dollars shall have been reached, if that fact shall appear. Before proceeding to that question, however, it is proper to remark that for some reason that does not appear, the complaint alleges that the indebtedness of Umatilla county at the time specified exceeded'fifty thousand dollars, instead of five thousand, as specified in the constitution, thus impliedly admitting that a county might become indebted [611] in any sum less than fifty thousand dollars. At least, that would be the ordinary implication; but in a case presenting a constitutional question of the gravest importance, we are not disposed to allow a question of pleading to control its determination, if it can be avoided. We think, therefore, that as the greater includes the less, we may inquire as to any and all indebtedness exceeding five thousand dollars, notwithstanding the form of the allegation. What the exact amount of the debts and liabilities of Umatilla county at the time of the order complained of was made, does not appear from the evidence with entire certainty; but that they exceeded the amount limited in the constitution, there can be no doubt. Mr. Hartman was county clerk of said county on the thirtieth day of June, 1890. At that time he made an examination into the financial condition of said county for the purpose of making an annual exhibit as clerk. At that time the amount of debts and liabilities of the county were one hundred and twenty thousand six hundred and six dollars and fifty-seven cents. The total cost of the new court-house and jail of said county up to July 1,1890, was eighty-eight thousand six hundred and forty-nine dollars and fifty-two cents. On his cross-examination, this witness stated that at the time the outstanding warrants aggregated one hundred thousand dollars, the assets were about one hundred and thirty-nine thousand four hundred and thirty-one dollars and sixty-nine cents. At the time the cost of the construction of the court-house and jail was estimated, there was in the fund the sum of seventy-seven thousand dollars. The assets oi the county were made up as follows: Bills receivable, twenty-seven thousand five hundred and thirty-four dollars and four cents; delinquent taxes, seventy-eight thousand six hundred and seventy dollars and twenty-nine cents; in sheriff’s hands, two hundred and eighty-six dollars and ninety-two cents; cash in treasury in court-house and jail fund, ten thousand one hundred and thirty-six dollars and [612] fifty-two cents; cash in treasury, one hundred and fifty-seven dollars; cash in treasury in school fund, six thousand nine hundred and sixty-three dollars and fifty-two cents; cash in treasury in county fund, twelve thousand seven hundred and one dollars and forty cents. Taxes were delinquent as far back as six years. It also appeared that ten thousand dollars of the county’s indebtedness was for a set of abstract books, which the county eaused to be prepared in 1890, which sum still remained unpaid at the time of the trial. None of the evidence offered on the part of the plaintiff was contradicted in any way. It may, therefore, be taken as true, that at the time the county court made the order allowing the defendant Byers three thousand five hundred dollars on account of said bridge, the. county was indebted in a very large amount. The debt for the abstract books alone, which still remained unpaid, was just twice the amount of debt which the county might lawfully create. The constitution of this state contains many checks and safeguards. Wherever it touches the question of indebtedness, aid to corporations, etc., it evinces a purpose on the part of its framers, and of the people who adopted it, to profit by the experience of the people in some of the older states. It was made the duty of the legislature, by article 11, section 5, of the constitution, in incorporating towns and cities, to restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit. . By section 6 of said article, the state is prohibited from being interested in the 'stock of any company, association, or corporation; and by section 7 the legislature is prohibited from loaning the credit of the state, or in any manner creating any debts or liabilities exceeding the sum of fifty thousand dollars, except in case of war, or to repel invasion, or to suppress insurrection; and it is expressly provided that every contract of indebtedness entered into or assumed by or on behalf of the state, when all its debts and liabili [613] ties amount to said sum, shall be void and of no effect. Section 8 of said article disables the state from assuming the debts of any county, town, or other corporation whatever, unless such debt shall have been created to repel invasion, suppress insurrection, or to defend the state in war; and section 9 forbids any county, city, town, or other municipal corporation, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever, or raise money for, or loan its credit to, or in aid of, any such company, corporation, or association. These citations are sufficient to show the spirit which pervades the constitution, and to indicate the earnest solicitude of its framers to guard the people, whose fundamental law it is, against the burdens of corporate debts and entangling alliances with corporations; but in giving effect to that provision of the constitution under consideration, we need not resort to extrinsic matters, nor even to other portions of the instrument. Its language is plain and mandatory. Words, when found in a constitution, as well as in a statute, are to be understood in their ordinary signification. That which is plainly expressed, admits of no construction. (People v. Wall, 88 Ill. 75.) The constitution of Colorado contains a similar limitation on the power of counties to contract debts. In commenting upon it, the supreme court of that state said: “ It is simply a declaration that the county, within certain limits, shall live within its income, and not that its income shall be more or less. The limit of indebtedness fixed was a matter of judgment about which men might differ, and it is not for us to substitute our judgment for that of the convention.” (People ex rel. v. May, 9 Col. 91.) It was argued on the part of the appellants, that the phraseology of the provision of the constitution under consideration had reference only to such debts and liabilities as are created or contracted by the direct action of the [614] county court, and not to such as arise by operation of law in the ordinary course of business in the county; that the latter class of debts and liabilities are created by law and not by the county, and therefore do not fall within this inhibition. There is much force in-the argument, and it received the sanction of this court in Grant County v. Lake County, 17 Or. 453. But that does not.avoid the difficulty in this particular case, for the reason that the evidence shows that the debts and liabilities which the county had created, and which it was fiot compelled by law to create, did exceed the sum of five thousand dollars. A review of the cases on this subject would not be profitable. It is conceded that they are not uniform; but the lack of uniformity arises more from differences in the language of the various constitutions than from any divergence in principle. Besides, we have not the time to go further in the discussion of the question than is actually necessary to dispose of the case‘presented by this record. Finding that Umatilla county, had created debts and liabilities in excess of five thousand dollars which were unpaid at the time the order complained of was made, the same was beyond the power of the county court, and its action thereon was void. It follows that for the reasons here given the decree appealed from must be affirmed.