49 P. 409 | Idaho | 1897
The appellant, a resident taxpayer of Canyon county, commenced this action in the district court of the third judicial district of Idaho, in and for Canyon county, on the twenty-fifth day of April, 1896, to obtain a perpetual injunction restraining the defendant board of commissioners from issuing bonds to fund $46,445.20 of alleged indebtedness of said county incurred during the years of 1894 and 1895. On the May 5, 1896, C. M. Hays, district attorney for said district, filed a general demurrer to the complaint; averring that “the complaint does not state facts sufficient to constitute a cause of action.” Thereafter, and on September 30, 1896, said district attorney filed, without leave of court, so far as is shown by the record, another demurrer to said complaint, alleging the following grounds: “1. That the complaint does not state facts sufficient to constitute a cause of action; 2. That several causes of action have been improperly joined in this, to wit: First, that the complaint seeks, in one action, without separating- the various causes of action, to enjoin the issuing of bonds to pay the current and necessary expense warrants of said county; second, to pay scalp fund warrants; third, to pay road-fund warrants. 3. That the complaint is ambiguous, unintelligible, and uncertain, in this: From the complaint it cannot be determined whether the plaintiff brings this action to enjoin the issuing of bonds to pay current and necessary expense warrants, to pay scalp fund warrants, or road fund warrants, of said county. 4. That the complaint does not state a cause of action as to why the scalp fund warrants are illegal and void.” Afterward the following order was made, to wit:
*410 “This cause coming on to be heard regularly this twenty-third day of December, 1896, upon the demurrer to the complaint herein, it is ordered that the demurrer herein be, and is hereby, sustained.
(Signed) “J. H. BICHAROS,
“Judge.”
And the said order, and a’ judgment dismissing, the action, were filed and entered in the cause on the thirtieth day of December, 1896.
We are unable to ascertain from fhe record upon which of the demurrers the court acted, or on what grounds the complaint was held to be bad. A demurrer, like any other pleading, may be amended; but, if amended, it should show on its face that it is an amended demurrer. We think that leave to file an amended demurrer should be first obtained, but, as to a first amendment prior to a hearing on demurrer, the leave should be granted as a “matter of course.” The practice of filing a number of demurrers to the same pleading by the same party is not permissible, nor is the court called upon to look through the files to see how many demurrers have been filed. Without attempting to solve the question as to which demurrer was argued, or on what grounds the demurrer was sustained, we express the opinion .that the plaintiff stated a -cause of action, and that the order sustaining, the demurrer and the judgment were erroneous.
Section 3, article 8, of the constitution, is in words as follows: “No county, city, town, township, board of education, or school district, or other subdivision of the state, shall incur any indebtedness, or liability in any manner, or for any purpose, exceeding in that year, the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof, within twenty years from the time of contracting the same. Any indebtedness or liabii-
But it is insisted that the judgment below was proper for the reason that the complaint does not show what the revenues for the different funds were for the two years named. It would have been better for the complaint to have shown this, and, while the complaint is imperfect, yet we think it shows a cause of action. It is alleged in the complaint that warrants, as above mentioned, to the extent of $46,455.20, were issued during the years of 1894 and 1895, and that the respondent commissioners were threatening to issue and about to issue and
The decision in Morgan v. Board (decided by this court April 6, 1895), 4 Idaho, 418, 39 Pac. 1118, is somewhat in conflict with the views herein expressed, and we think should, to some extent, be modified. The remedy to correct errors and irregularities in the action of a board of commissioners acting in a matter over which such board has jurisdiction is solely by appeal. But where a board of commissioners, in violation of the constitution, incurs a large debt in excess of the revenues for the fiscal year in which they assume to incur such debt, without submitting the question of incurring such debt to the voters, and providing for payment of the interest and principal thereof, as provided by the plain provision of the constitution and statutes of the state, such board is not acting within its jurisdiction; and the action of the board in making such an order is void, and may be attacked directly, indirectly, or collaterally, at any time or place. To hold otherwise would give the boards of commissioners power to do indirectly what the constitution forbids. The ease of Picotte v. Watt, 3 Idaho, 447, 31 Pac. 805, and that of Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259, have no application to the case at bar. In the former the plaintiff sought to enjoin the county treasurer from paying a number of warrants, and in the latter case the plaintiff was seeking by certiorari to review an order made by a board of commissioners in disregard of the appeal provided by statute. In County of Ada v. Bullen Bridge Co., ante, p. 188, 47 Pac. 825, this court held that the county could not sue in equity to cancel warrants issued without authority, but should sue at law, under section 4928 of the Revised Statutes, and compel the holder of the warrant to establish his rights therein. In the case at bar the relief sought is not to cancel written instruments, nor to review the action of the board of commissioners in making an appealable order, but to prevent the county commissioners from doing the threatened act of changing non-negotiable instruments, whose validity is questioned, into negotiable instruments. This relief is purely equitable, and we know of no remedy at law to prevent such act. If the county