State ex rel. Atty. Gen. v. Board of Sup'rs

Holden, J., delivered the opinion'of the court. This is a mandamus suit brought by the state to compel the board of supervisors of Stone county to budget and make provision for the expenditure for tick eradication work in that county for the next year, tinder the Budget Law (chapter 225, Acts of 1922). From a judgment sustaining a demurrer to the petition and dismissing the cause, this appeal is prosecuted by the state. The appeal presents for our consideration the construction and validity of the Budget Law (chapter 225, Acts of 1922), and especially section 6 of the act, which'is challenged by the state as unconstitutional and void. The Budget Law provides, ampng other things, that the board of supervisors shall at their September meeting prepare a budget of county expenses estimated for the next year. The budget so prepared with the itemized statement of the estimated expenses for the coming year shall be published in the county paper. It is required that the statement be in such form as to show all estimates for the different expenditures for county purposes for the coming year. Section 6 of the act provides that, when a majority of the qualified resident taxpayers of the county petition against any of the budget items proposed to be expended for such county, “it shall be unlawful to impose any taxation based on such items thus petitioned against, other than taxes for payment of interest or installments on bonds, unless the question shall be first submitted and favorably voted upon at an election to be held for that purpose.” In the case before us a majority of the qualified resident property taxpayers petitioned the board of supervisors against providing in the budget the item of expenditure for carrying on tick eradication work in the county; said item of expense being six thousand four hundred dollars. The board, complying with the petition, under the Budget Law, struck the listed item of expense for tick eradication from the budget, whereupon this mandamus proceeding was [695] instituted by the attorney-general to compel the board to budget and make provision for the expense of the tick eradication work. The state contends that section 6 of the act is unconstitutional and void for several reasons; but we shall consider but one ground urged against its constitutionality, and that is that it contravenes section 170 of the Constitution. of 1890, which provides for a board of supervisors with full jurisdiction over roads; ferries, and bridges, with other powers and duties enumerated therein. The office of supervisor, it is contended, carries with it the right to reasonable compensation for services rendered by the occupant, and, if such compensation is denied the supervisors, it would result in the practical abolishment of the office, or so impair its functioning as to destroy its efficiency, and thereby nullify the office created by the Constitution. Therefore it is urged that, if a majority of the taxpayers may by petition take away the compensation to be paid to supervisors, then it would, in effect, be to abolish the constitutional office of supervisor. It may be added also in this connection that the functioning of other constitutional offices in the county, such as county treasurer (since to be abolished), might be impaired or destroyed by a-petition of the taxpayers against the allowance of compensation-to those performing the duties of such offices. However, we shall rest the decision upon the constitutionality of the act with reference to the abolishment or impairment of the functioning of the office of supervisor' as provided in section 170 of the Constitution. We think section 6 of the act clearly violates section 170 of the Constitution, if not also other sections of the organic law. If a majority of the taxpayers may by petition compel the supervisors to strike from the budget an item of expenditure which goes to pay for the services of the constitutional officer, such as a county supervisor, then the power is delegated to the petitioners to abolish the office [696] by the indirect means of taking away the entire compensation, which would result in the office remaining vacant. This would not only be specifically contrary to the Constitution, but would be void as contravening, generally, the basic law, in that it would authorize the destruction of the governmental functioning of the county. As we understand the Budget Act, all items of expenditure must be listed therein and published; and it must be apparent to all that there are many different items of expense necessary in the government of the county, such as the functioning of the courts, and other expenses paid as compensation to officers serving in the county. The board of supervisors must not be hindered, and thus rendered inefficient, in its supervision, construction, and repair of the public roads, ferries, ■ and bridges of the county. The administration of these important internal affairs of the county must be carried on under the provisions of the Constitution; and we think it was beyond the power of the legislature to enact a law giving a right to a majority of the property holders to interfere by petition with the constitutional functioning of the affairs of the county. We have patiently endeavored to reach a construction of section 6 of the act that would uphold it as valid. We have tried to find a reasonable ground to hold that the legislature intended that only those items in the budget which were expenditures within the discretion of the board might be stricken from the budget by petition, and that all other expenses fixed by law could not be eliminated by petition, going upon the idea that to hold the legislature meant otherwise would be to charge it with an absurdity not intended; but we are unable to give the act such a construction, because its language is such that there is no room to interpret it in any other way than that the taxpayers may by petition prevent the expenditure for any item except “taxes for payment of interest or installments on bonds.” [697] . The express exclusion of this item of bonds necessarily implies the inclusion of all other items of expense listed in the budget. Therefore, where the language plainly gives the intent, there is no room for a construction at variance with the language. Consequently we hold that section 6 of the act is void; and, since we believe the legislature would have enacted the other parts of the chapter without section 6, .which appear to be valid, section 6 is separable from the other portions of the act, and we uphold the other parts as valid. We think it will do no harm to point out that, under Laws 1916, chapter 167, state-wide tick eradication is made mandatory, and the work of tick eradication in the counties is required to be carried on and the expenses paid by the respective counties. The purpose of the law, which has already cost the taxpayers a great sum of money in the past several years, was to free our state from the fever tick and thereby benefit our stock and promote the stock industry to the extent of . making it profitable, like it is in other states which are tick-free. Now it cannot possibly escape the attention of the observer that, if this state-wide law is to be carried out and the state is to be freed of the tick, and thereby get a substantial benefit for the money and labor already expended, the laAv must be uniformly observed by all the counties infested with the tick; otherwise a single county, here and there may become infested with ticks, which'will spread to'adjoining counties, and in the course of time defeat the whole purpose of the tick eradication law. ' The judgment of the lower court is reversed, and the cause remanded. Reversed and remanded'.