Dorothy v. Pierce

Opinion by Mr. Justice Wolverton. 1. It is stoutly contended by counsel for defendants that the allegation that there is now in force as a debt against said county an amount exceeding forty thousand dollars “over and above all indebtedness incurred or required in the administration of the business affairs of the said county, in the payment of salaries, expenses in holding its courts, or any other debts or liabilities created by operation of law for the current fiscal year of said county,” contains by force of the phrase “for the current fiscal year ” a negative pregnant, and that while the allegation may be true, it may also be true that the forty thousand dollars county indebtedness may yet consist wholly of obligations thrust upon the county by operation of law; at some time prior to the current fiscal year named. In Burnett v. Markley, 23 Or. 440, (31 Pac. 1050,) Bean, J., says, “before it can be said that a county has exceeded the constitutional limit of indebtedness, it must appear that the debts have been voluntarily created by the county in its corporate capacity since the constitution took effect, and such debts were not created for the pur [376] pose of suppressing an insurrection or repelling an invasion.” And by the same opinion Grant County v. Lake County, 17 Or. 453, (21 Pac. 447,) and Wormington v. Pierce, 22 Or. 606, (30 Pac. 450,) are approved, wherein it is held that debts and liabilities imposed upon a county by law, such as salaries of officers, expenses of holding courts, and other like outlays and charges which it is powerless to prevent are not within the inhibition of section 10, article XI of the constitution, providing that “no county shall create any debts or liabilities which shall singly, or in the aggregate, exceed the sum of five thousand dollars, except to suppress insurrection or repel invasion; but the debts of any county, at the time this constitution takes effect, shall be disregarded in estimating the sum for which such county is limited.” It is apparent that the portion of the complaint referred to by defendants does not negative the exceptions of this section of the constitution, both express and implied, and would undoubtedly be insufficient were it not followed by the allegation, that “all said indebtedness of forty thousand dollars has been created voluntarily by the county.” Coupling this with the allegation so referred to the complaint meets the requirements of Burnett v. Markley, is relieved of the apparent ambiguity pointed out by counsel, and we think is quite sufficient. 2. It is also urged against the complaint, that it does not allege that the defendant Rourke is the present owner and holder of the warrants issued. This objection is not well taken. The complaint alleges that the warrants were issued and delivered to Rourke, which is sufficient to show that Rourke is the owner thereof within the doctrine of Moss v. Cully, 1 Or. 148 (62 Am. Dec. 301). It follows from the foregoing that it was error to sustain the demurrer, and the decree of the [377] court below is therefore reversed, and the cause remanded with directions to overrule it. Reversed.