State ex rel. Reed v. Commissioners of Marion County

The opinion of the court was delivered by Horton, C. J.: Before proceeding to the principal inquiry involved in this action, we will dispose of the preliminary objections presented on the part of the defendants to our consideration of the merits of the cause. These are: First, that the state is not the party in interest, and hence, that the suit cannot be maintained in its name; and, second, if the suit can be maintained in the name of the state, it cannot be done on the relation of the county attorney. Neither of these objections is tenable. The suit is being prosecuted by the proper •officer, and in the name of the proper party plaintiff; and in justification of this conclusion we need only refer to the prior decisions of this court: Craft v. Comm’rs of Jackson Co., 5 Kas. 518; Bobbett v. State, 10 Kas. 9; Bartlett v. State, 13 Kas. 99; State v. Faulkner, 20 Kas. 541. The main question at issue is, whether a board of county ■commissioners have the power to use or appropriate the fund raised by taxation to defray county charges and expenses for the construction of permanent county buildings? Counsel for defendants contend that under the express authority given by §§ 4 and 16, eh. 25, Gen. Stat., the county commissioners of Marion county had ample power to make the order of the 9th of August, 1878, and build the county building therein referred to, and also to furnish the means of paying for it from the revenue levied to defray the county charges and •expenses, and further contend, that the1 only restrictions or limitations upon this power are the conditions in §§17 and 18 of said chapter 25, which they assert merely prohibit the •commissioners from borrowing money or assessing special taxes for permanent buildings without first having submitted the question to a vote of the electors of the county. On the other hand, it is claimed on the part of the counsel for the plaintiff, that the commissioners have no right to expend the yearly levies intended for county charges and •expenses to build permanent county buildings, and that the right to incur obligations for the erection of this class of buildings includes the right to use the means necessary to ■create a fund to pay the same, and if the necessary prerequisites prescribed by the statute, to wit, the obtainment of the consent of the electors expressed through the ballot-box, have not been fully complied with, in order to give the right to •create a fund with which to pay such obligations, then the right to incur such obligations does not exist. This latter view seems to us the better construction of the various provisions of the statute upon the subject, and more in consonance with the letter and spirit of the law. The revenue collected from the levy provided for in section 1, Gen. Stat. 295, was evidently intended to be used only for •ordinary and current expenses. The words “county charges and expenses,” employed in said section 1, are synonymous with the phrase “current expenses” in §§16 and 181, ch. 25, Gen. Stat. These phrases only include such charges and expenses as are incidental in conducting the business of the county government for the current year. It would be a strained construction of language to say that the erection of permanent county buildings, costing thousands of dollars, is the ordinary current expense of a county. It is in fact an extraordinary and exceptional expense. When permanent county buildings are once erected and completed, the benefits to the county are permanent and continuous; and while the erection of such buildings is a county charge and expense in the sense that the county, under proper conditions, must pay the cost of them, it is not a county charge in the meaning of said section 1 of Gen-. Stat. 295, nor a part of the “current expenses” referred to in the fourth subdivision of sec. 16, and in sec. 181, ch. 25, Gen. Stat. That the legislature did not understand that “current expenses” included the “erection of county buildings,” is manifest from the language of the said fourth subdivision of sec. 16, which' reads as follows: Apportion and order the levying of taxes as provided by law, and to borrow, upon the credit of the county, a sum sufficient for the “erection of county buildings,” or to meet the “current expenses” of the county when there is a deficit in the county revenue. In this subdivision, county buildings and current expenses are placed in an antithetical relation to each other, and, as used, express different purposes for which money may be borrowed. If the funds needed to defray the current expenses could be applied to the erection of county buildings, then1 the lawmakers were guilty in adopting said subdivision four of repeating therein the same meaning in different words. Such is not the true construction, nor even a.reasonable one. In addition, it is not necessary to give a forced and extended definition to county charges and expenses in order to furnish commissioners with funds to build county buildings, as it appears that other and ample provisions have been made by the legislature for the creation of a fund, distinct from the general revenue of a county, out of which to erect these buildings. This power is found in the authority to borrow money, or assess special taxes therefor, under the condition that a majority of the electors of the county first sanction the creation of a fund to construct such buildings. (§§16, 17, 18, 19 and 20, ch. 25, Gen. Stat.) As it was not designed or intended to include in the levy for county charges and expenses the means to erect county buildings, and as the constitution of the state prohibits the diversion of taxes from the object for which they are levied, it seems to us that the commissioners of Marion county have no power to employ the current-expense fund of the county for the building proposed to be constructed under their order of last August. All proceedings by them in that direction, without a direct vote of the electors of their county, are an exercise, or an attempt to exercise, power on their part unauthorized by law. Such illegal and unauthorized acts of officers, tending to aggrieve the whole community alike, are the proper subjects of the preventive jurisdiction of equity, when its exercise is invoked by suitable authority. The conclusion we have reached leads necessarily to the other inference, viz.: that before county buildings are constructed at the charge of the county, the sanction of the electors of the county must be first obtained. No funds can be secured by borrowing for this purpose without a vote; nor can any special tax be levied for like object without an appeal to the ballot.' With occasional exceptions, county buildings are constructed at the expense of the tax-payers, and as this class of buildings is often costly and usually intended to be permanent, the legislature, in its wisdom, has restricted the power of the county commissioners over their erection, and deposited - with the electors the decision whether improvements of this character .shall be made. If the current-expense -fund can be drawn upon for this purpose, the restrictions would be nugatory, as each year taxes could be assessed in violation of said section 18 to build permanent county buildings, under the name of “ county charges and expenses.” It is a well-settled rule, that the law does not permit that to be done indirectly which may not be done directly. That the present county buildings are insufficient, and many of the public offices unsafe; that there is no jail or jury room in the county; that it is inconvenient for the commissioners to rent rooms for county purposes; and, finally, that the proposed buildings are greatly needed in Marion county, are no arguments in favor of the commissioners’ proceeding to make any contract therefor, without first submitting the question to a vote. The officers of the county are the mere agents and servants of the people, and if new buildings are needed and demanded by the electors, the board has been derelict in not obtaining from such electors the authority to erect such buildings in the manner provided by the statute. A further argument against the right of the commissioners to erect permanent county buildings, without a vote, is found in ch. 26, Gen. Stat. 296. Section 2 of this chapter provides that — “ When the county seat of any county has been located by a vote of the electors of the county, or when county buildings have been erected, donated or purchased at the county seat at a cost of at least two thousand dollars, the board of county commissioners upon the petition of three-fifths of the legal electors of the county, or where county buildings have been erected at the county seat at a cost to the county of ten thousand dollars, the board of county commissioners upon the petition of three-fourths of the legal electors of the county shall order an election for the re-location of such county seat.” The erection of the new permanent buildings will cost nearly $7,500. The building now in use cost about $3,000. If the county commissioners are permitted to proceed with the construction of the building, the county will have paid out over $10,000 for its public buildings. Such action will result in directly aiding the continuance of the county seat at Marion Centre, as then no election can be had for the relocation of the county seat unless three-fourths of the electors petition therefor. If this building is not erected, a vote for a change of the county seat can be had if three-fifths of the electors sign a petition. Thus, the difficulty of a vote on a change of the county seat is increased. As the question of the location of county seats was intended to be within the control of the electors of a county, with certain restrictions on calling elections, it is not strange that the legislature purposely provided that the commissioners could not add to the restrictions by the expenditure of public funds at their own pleasure. The electors are the parties most interested. They must be consulted and their assent given in a legal way, if permanent county buildings are erected. The application of the plaintiff for an injunction to restrain the defendants from letting a contract to erect county buildings should have been allowed. The order of the district judge will therefore be reversed, and the case remanded with directions to said judge to grant the injunction. All the Justices concurring.