This wаs a case brought by the plaintiff, who was a resident and taxpayer of Yuma county, against the defendants, who constitute the board of supervisors of the county, to restrain said defendants from issuing the bonds of the county for the purpose of funding the outstanding or floating indebtedness of the county.
The case was submitted to the lower court for decision upon an agreed statement of facts, from which it appears, so far as the same is essеntial to a proper determination of the case in this court, that the defendants, as members of the board of supervisors of the county, in aсcordance with the terms of a previous resolution adopted by the board, intend to and are about to issue and sell the bonds of the county, in thе sum of $100,000, payable twenty years after the date of issue, with interest at the rate of five and one-half per cent per annum, to D. E. Dunn & Co., for par vаlue, with accrued interest, and $1,500 premium, for the purpose of funding the outstanding and floating indebtedness of the county, without first - submitting the question of the issuance оf said bonds to the qualified voters who are property taxpayers in the county; that the total indebtedness ’ of the county, including that to be evidenced by said bonds, does not exceed four per cent of the valuation of the taxable property in the county, as ascertained by the last assessment for state and county purposes.
The court determined the case in favor of the county, and refused to issue an injunction restraining thе defendants from issuing and selling the bonds, and thereupon this appeal was taken from such judgment.
Two questions are presented by the record: First. Can the сounty whose total indebtedness, including the bonds proposed to be issued, which is less than four per cent of the valuation of the tax
. The first quеstion seems easy of solution. Beyond question the general rule is that a county may not issue bonds unless the power is specifically conferred by law or unless the power is necessarily implied from the law relating to the powers of counties. 28 Cyc. 1575; Board of Supervisors v. Hawkins,
“Nothing in this chapter contained shall be construed to prevent any county, school district, city, town, or other municipal corporation frоm creating an indebtedness not exceeding four per centum of the value of the taxable property in such county, school district, city, town, оr other municipal corporation; provided, that if such county, school district, city, town, or other municipal corporation shall desire to fund such indebtedness by the issuance of bonds therefor, said bonds shall be issued in all respects in conformity with the provisions of this chapter, and, provided, further, that it will not be necessary to hold the election required to be held heroin. ...”
By the express terms of this provision each and every organized сounty in this state may create an indebtedness on account of the general current or running expenses of the county not exceeding four per cent of the valuation of the taxable property in the county, and may issue bonds to fund such indebtedness. Such seems to be the clear purрose and intent of the legislative enactment. We construe the
This brings us to the second question. The clause contained in the section of the statute cited that, “ ... if such county . . . shall desire to fund such indebtedness by the issuance of bonds therefоr, . . . provided, further, that it will not be necessary to hold the election required to be held herein, . . . ” is in the nature of an exception. The expressiоn “the election required to be held herein” evidently refers to
Board of Supervisors v. Hawkins, supra, is a case wholly and entirely different from the present case. In that case the county was about to issue bonds for the purpose of building a courthouse and thereby creating a new debt of the cоunty. The case was predicated upon a different provision in the statute, to wit:
“ . . . That bonds may be issued under the provisions of this chapter for the construction and re- . construction of roads, bridges and highways; for the construction of public buildings, and for any other lawful or necessary purpose. ...”
. The exception dispensing with the necessity of submitting the question of issuing the bonds to the voters does not apply to that provision. In no sense could the issuаnce of bonds for the purpose of building a courthouse be considered as the funding of an existing debt. Any expression in Board of Supervisors v. Hawkins contrary to the view herein expressed in reference to the funding of the valid, outstanding or floating indebtedness of a county may be disregarded and considered overruled.
The judgment of the lower court is therefore affirmed.
CUNNINGHAM, C. J., and ROSS, J., concur.